Yesterday I met with Ryan Lobato, and Rachel Blue both with the law firm McAfee & Taft. I will let you read their bios but both their areas of emphasis are IP (intellectual property) and Ryan has a special interest in Social Media. We spent almost two hours talking just about legal issues surrounding social media and another two hours (over dinner) continuing the conversation which ranged from virtual communities such as second life to legal doctrine applicable to other industries which went through rapid change. Rather than attempt a journalistic article of our conversation  I thought I would just share my notes – just the facts. Feel free to ask questions and post comments below and I will be sure to find the answer when appropriate.

Two things before I begin: First, what follows is not legal advice and shouldn’t be considered as such. If you have a questions related to a specific topic, give Ryan or Rachel a call – they are very affordable especially when you consider the cost ramications of a lawsuit. Second, in the interest of full disclosure, I have known and employed Rachel’s services for several years.

We started by talking about the high ranking official from MI6 who was released from his position as a result of what his wife was posting on her personal facebook page. Nothing horrendous, just personal stuff which, for a spy, isn’t a good idea. I asked about the feasibility, here in the United States, of being released from your position or transferred to another because of the actions/statements of a family member on a social media site. While the actions a company might take will depend on a number of variables the bottom line is, if someone is posting information which discredits a company in any way, the company has the right to take action to protect itself.

We talked a bit about some of the social media/networks. Obviously twitter was at the top of the list. One thing Ryan points out about Twitter (and is applicable to other social media services) is its terms of use/contract with its users is very minimalistic, probably for legal reasons. Furthermore, its policies are also pretty minimalistic and somewhat vague. For example, Twitter allows for Tweet Impostors so long as the the actions of the tweeter are for “parody.” However, there is no clarification of what “parody” is. A slippery slope to say the least.

What about your personal tweets, are they protected as your work? From a legal point of view they can’t be copyrighted simply because it is too short. At least that is the way it stands now. Consider  the person who is writing a book, backwards, on twitter so when you read through the tweets you have a completed work. Is that protected? Debate ensued and we all agreed that, “it depends” which was a common statement throughout our meeting.

We talked for a bit about lawsuits over tweets which might be considered libel. The bottom line, libel still exists and someone tweeting a libel statement can be held liable for their actions. Furthermore, anyone who might re-tweet a libelous statement could also be held liable for libel simply by republishing the statement. This, by the way, is not the position a national news station presented from another attorney and we discussed this. Again, it depends reared its ugly head but the bottom line was, the law of libel still applies. If a statement of fact was made and it was, in fact, not accurate, the tweeter could be held liable for libel.

This brought us to the issue of libelous comments in the comments section of a blog. By Ryan’s own admission, “this is where the law gets strange.”

If you allow comments on your blog, you are the “publisher” of those comments and can be held liable for libel statements. Like so many things we talked about, how liable depended on a variety of facts. For example, is it reasonable for you to monitor the comments on your blog, i.e. do you get just a few a day or hundreds per hour?), is your blog for commercial use (i.e. do you earn or hope to earn any income or do you currently have advertising on your blog? But what about disclaimers? Ah, you are thinking, a disclaimer will protect you.. not so fast. A disclaimer may prove you have a more active role in the creation and maintenance of your blog and actually hold you to a higher standard.

What I found interesting was it seemed the deck was stacked against the little guy. Ryan didn’t disagree but pointed out there are risks everywhere.

Everywhere, by the way, was our next point of discussion. Ryan talked about the fact that every avenue of social media you engage in opens up a new avenue of litigation. You use a picture on your site which is copyrighted, you are dealing with copyright law. Talk about your health issues or the health issues of your friend, by name, now we are dealing with HIPAA laws. Have a forum section where people can post information about items for sale and apartments for rent. You are dealing with fair housing laws. Want people to post references about work done by an employee… you guessed it, employment law.

Which brings us to Linkedin. For all you managers of employees who have asked you to write a positive review on their linkedin page, that positive review can be admitted into evidence should their performance ever subside and you decide to fire them and, in turn, they decide to sue you.

Our conversation meandered a bit at this point, going over scenarios, i.e. blogging about your neighbor and the difference between opinion (he doesn’t look good in plaid) vs statements of fact (he is a bigot) and the weird ways social media is being brought into trial, i.e. divorce/custody cases, etc. but when it came back to being a user of social media and specifically providing commentary, it was all about libel and in more and more circumstances, copyright violation.

I asked what the real risks were, if I were to copy and paste someone’s copyrighted work into my blog. If registered (keep in mind there is a difference between registered work vs work which you plan to register), statutory damages can equate to $150,000. Copyright also applies to images, music, etc. and every day lawsuits are filed over these infractions.

The urban legends of academic use

I was amazed at all the misinformation I had regarding academic use of copyrighted material. In fact at one point we joked there should be top ten list of fair use urban legends. It was pointed out there was. It was created by an attorney and can be found in several online locations in violation of the copyright. The irony.

Here is the bottom line, unauthorized copying of copyrighted material is in violation of the owner’s rights. Students and educators aren’t shielded. Ryan pointed out that several universities offer guidelines but reminded me that guidelines were not always complaint with the law and before using anyone’s work you should always get permission. What is the penalty for doing so if you don’t? You guessed it, it depends.

The use of social media by a business entity was also part of our discussion but will have to wait for another blog post. Time and tide wait for no one and I am just about out of the first.

Bottom line

Old laws do apply to new technology. There is a legal term, “Law of the Horse” that was applied to the time when vehicles started to replace horse drawn buggies. Both were forms of transportation so did the creation and use of a car need a new set of laws.

The laws of libel still apply. What we used to whisper we now broadcast with, in many cases, an amplifier. There are companies which do nothing but record every single statement made online regardless of who made it.

Keep in mind there are still arguments over the current set of laws and because so much “depends” many situations will need to be argued in a court or legislated at the federal level. The decisions will be left to appointed  judges or your congress. Pros and cons of both paths were also discussed and it is my opinion the latter is probably the best choice.

Although you might have rights to legal action you must consider the other variables involved. Often times taking legal action is the last resort.

Finally, when I asked Ryan if he would encourage someone to start blogging if they desired to to so, even taking into consideration all the risks he outlined during our meeting he said yes. His reasoning is in the video below.

The Law of the Horse: What Cyberlaw Might Teach
Cyberspace and the Law of the Horse

That’s it folks, share your thoughts, questions and comments below.