What privacy rights do you have on social networks? Nearly everyday, civil litigators like myself and law enforcement officials request information from Facebook regarding user information.  Understandably, Facebook has been very difficult in responding to such requests, believing that users have a right to privacy concerning its users information. But how much right should users of social networks have over information that is of public record?

Many social networking sites have taken the position that they will not respond to requests for information without a subpoena.  This is a problem because users cannot obtain access to their accounts even if their account has been hacked.

This is especially problematic when it comes to the problem of cyber bullying. I have been trying to obtain records from Facebook for a client whose child whose account has been hacked by a cyber bully.  Facebook has been unwilling to provide information to me about my clients own account.

According to Law.com, the Deputy General Counsel of Facebook, Mark Howitson told lawyers at the Legal Tech Conference in New York today that they are ready to fight requests for user  information without a subpoena.

Unfortunately, you can only serve that subpoena in California which is problematic if you live in New York. Even with a subpoena, they will only provide basic subscriber information unless that user gives his or her consent.  The company believes that it does not have to provide user information under the Electronic Communications Privacy Act which was passed before Mark Zuckerberg, the founder of Facebook, danced to his first disco tune at his bar mitzvah. Since this issue is relatively new, a congressional hearing is forthcoming.

Mr. Howiston suggests that the best way to obtain information from Facebook is to make a simple friend request, which is of little utility.

What do you think?  What right of privacy should you have on social networks?  Should there be a cyber bullying exception?

Related posts:

1. Subpoena information for Facebook & Myspace
2. Watch for yourself: CEO of Facebook Mark Zuckerberg speaks about Privacy
3. Legal Reasons Why Your Company Should Have a Social Networking Policy
4. Legal Problems of Social Networks
5. Should Bosses Be Worried About Accepting Facebook “Friend” Requests?

I have a friend who is an accountant at a small firm. Lets call him Cliff.  Cliff greets everyone with a compliment and is an ace accountant.  Cliff surfs the internet at work.  Cliff was recently on Twitter,  looking for people to follow.  He becomes Twitter “friends” with Samantha, an accountant at Hobes and Hobes, a rival firm.  From the looks of Samantha’s avatar, she is attractive.

Samantha asks Cliff to meet him at a bar after work. After a few dirty martinis, Cliff tells Samantha that his accounting firm is about to land Giggle, a big, funny internet company. Samantha buys the next round and that was the last thing he remembers.  He wakes up the next morning and finds out that Hobes and Hobes has landed the Giggle account.

Does your company block access to social media sites such as Twitter, Facebook and Linkedin because you are afraid of employees like Cliff? Is the work environment at your workplace hostile to employees who blog? If so, your company is part of the majority of organizations that have a restrictive social networking policy.

While a strict social networking policy is a simple way of limiting legal liability, do you really think that your company can compete in a 24 hour a day workplace with outdated policies? Probably not.  If your company is  struggling with how to integrate social media into the workplace, one way to focus is by creating a social media policy with an eye toward collaboration.

The Harvard Business Review observes that businesses are discovering that an über-connected work environment is not just about implementing a new set of tools — it is also about embracing a cultural shift to create an open environment where employees are encouraged to share, innovate and collaborate virtually.   Some benefits of a hyper-social company include:

• Access to social media improves productivity;
• Millennials will seek jobs that encourage the use of social media;
• Companies that provide access to social media create a more engaged workforce.

After creating your hyper-social networking policy, it is then vital to address its legal implications, which I addressed previously in Legal Reasons Why Your Company Should Have a Social Networking Policy.

CONCLUSION

Employees are online whether you like it or not.  By simply banning the use of social networking sites on company computers, your employees will simply use smartphones to stay connected. By thinking expansively about social media, more specifically about using it for increased productivity and collaboration, there is great opportunity for growth.  Have your ideas written in the form of a social media policy, which will put your employees on notice of any potential legal problems. By the way, Cliff is not real. But he could be and you can be responsible for Cliff’s actions without a written social networking policy.

Related posts:

1. Legal Reasons Why Your Company Should Have a Social Networking Policy
2. Legal Problems of Social Networks
3. Is There any Room for Social Media for In-House Insurance Defense Attorneys?
4. Social Media Law
5. Social Networks, Employees and Anti-Discrimination Laws.

In early October, the FTC published its guidelines governing testimonials. The main purpose of these new guidelines is to protect the public from hidden endorsements.

Many bloggers are paid by advertisers to write about a product.  If you are a tech blogger and you were handed a shiny Droid phone by Verizon to blog about its new camera, you are now required to disclose that relationship.  The new guidelines  have  teeth, with fines of up to $11,000 for not disclosing payments. How are bloggers and advertisers able to protect themselves from an unwanted legal action?

ADVERTISERS AND BLOGGERS NEED A WRITTEN AGREEMENT

If you are an advertiser and you pay bloggers to review and report on your product and services, you must develop an agreement with the blogger that mirrors the guidelines of the FTC rules.  The agreement should:

• Prohibit them from  against making baseless claims about the service or product;
• Require the blogger to disclose the connection between the advertiser and the blog owner. A tech blogger must disclose in its review of the Droid smartphone that it received the Droid for free.

THE ADVERTISER MUST MONITOR THE WORK OF THE BLOGGER

• The advertiser should also set up a Google Alert,  follow the blogger on all social media and constantly review the blog posts to make sure that the blogger complies with the FTC rules.

MONITOR YOUR EMPLOYEES

• A company is also responsible for what their employees disseminate on social media.   Companies must have their employees disclose that they work for them in any reviews.  You can also prohibit your employees from reviewing any of your products.

BE TRUTHFUL

This may appear obvious, but both bloggers and advertisers now have an affirmative duty not to mislead or make a statement about the product that his untrue. Bloggers now have to perform due diligence about the product before posting.  Bloggers now must review the product in an unbiased manner.

What do you think of the new FTC rules?  Are they necessary?  How do you think they will be enforced?

The Law Office of Frederic R. Abramson drafts agreements between bloggers and advertisers.  For more information, contact me at 212-233-0666

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• The FTC Rules for Bloggers (bloggingot.com)

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1. Internet Defamation Law: Twitter, Facebook and Bloggers.
2. 216% Increase in Libel Lawsuits Against Bloggers
3. Legal Reasons Why Your Company Should Have a Social Networking Policy
4. 23 Legal Issues for Start-ups and Businesses

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Unhappy customers are a fact of life for small businesses.  In the past, if a customer was was not pleased about the Miso Black Cod he would simply kvetch to a hundred of his closest friends and never return (unless he was Larry David).

Web 2.0 has changed the way people complain.  Disgruntled customers now spend their time logging on to Yelp, Facebook and “Gripe” sites to express their feelings to the net citizens of the world.  A  poor review on Yelp could create losses of thousands of dollars.  If the review is defamatory, should you sue?

The New York Law Journal (pay wall) reports that the bar is very high for a company to win a defamation lawsuit against an individual. In Intellectual Art Multimedia v. Milewski, New York Supreme Court Justice Hon. Judith Gische recently ruled against the company in its Internet defamation lawsuit against a customer who posted negative comments on the Rippoff Report.

Intellectual Art runs the Swiss Finance Academy which operates a school of business. It sued a customer for defamation due to a negative review. Here is a sample of the alleged defamatory comments:

• “[t]hey tell you where the location is then a week before the program starts they change the location and say no refunds whatsoever.”
• “everything they taught was a “JOKE.”

Judge Gische decided that the “speech [was] merely an alleged statement about [the customer's] personal opinion about the quality of the services of the plaintiff (Intellectual Art).”  In addition, the judge ruled that on issues dealing with advocating on part of the consumer, courts are reluctant to stifle criticism of goods or services.

Conclusion

Don’t get me wrong,  small businesses can still sue a customer for defamation. If the remarks are more than criticism, contact a lawyer.  However, in this era of transparency, it is much cheaper to engage in business practices that foster trust than to start a  lawsuit.  Use Google Alerts and establish a Twitter account to monitor your brand.  If a customer is unhappy, ask him why. Companies such as Zappos built an empire on listening to their customers through social media.  So should you.

Related posts:

1. Internet Defamation Law: Twitter, Facebook and Bloggers.
2. Legal Reasons Why Your Company Should Have a Social Networking Policy
3. Wage and Hour Lawsuits are Rising
4. Legal Problems of Social Networks
5. Facebook’s Law Department is Ready to Brawl over Requests for Information from a User’s Facebook Account

I have recently started reading The Magic of Thinking Big, by David J. Schwartz. The book, written in 1959, has been getting a lot of ink lately because his ideas are classic. Business thought leaders such as Seth Godin and Tim Ferriss cite the book as required reading.

Mr. Schwartz suggests that we should practice giving value.

• Practice adding value to things. Look for ideas to make things worth more
• Practice adding value to people. As you move higher and higher in the success world, more and more of your job becomes people development. Look for ways that you can help others. Take a look at your contacts and find ways to connect them.
• Practice giving value to yourself. You need to ask yourself everyday what can you do to make yourself more valuable today. With social media, you can make yourself more valuable by writing a blog.

Let me know of your action steps towards providing more value.

Related posts:

1. Review of Chris Brogan’s Trust Summit: Be a Priest and Build a Church

Social Media is quickly transforming how people are communicating with each other.  It should come as no surprise that employees are now looking to connect with their bosses on Facebook.

The New York Law Journal (under a pay wall) reports today that the innocuous friend request is really a Trojan horse which contains the hidden danger of litigation.  Should bosses accept Facebook ”Friend” requests from an employee? I think they should, with certain caveats.

The article cites Michael Schmidt, Esq. of Cozan O’Conner, who argues

“a manager is bound to learn things about an employee that they don’t already know… when the manager learns of some personal attribute through the site, the worker now has the opportunity to argue that any later adverse employment decision was based on this personal information.”

Here are some other potential issues:

• The employer views the profile of an employee and notices that the employee has different religious or political view. This may influence the employer or manager when it comes to time to make a promotion.
• If an employee makes defamatory remarks against an employee or the company, the employer would then have the duty to investigate the incident.

Shanti Atkins, an attorney and President of ELT. Inc thinks that employers should simply ban employees from accepting “friend requests.”

I think that Ms. Atkins approach is naive and could be business suicide.  Chris Brogan, speaking in New York last week at the Trust Summit, argued that companies need to listen, collaborate and learn to survive.  Companies cannot collaborate with their employees without engaging with them in social media.  Moreover, if an employee or employee is doing something improper, such as writing something racist, wouldn’t it be wise to investigate it immediately rather than ignore it?

I agree that there is a risk for potential litigation as people are moving to communicating in written form that is public.  There is a paper trail that can be used against anyone for a number of reasons, including litigation.

What companies need to do is have a social media policy drafted that spells out the specifics of what everyone can do when they engage on social networking sites.  This new area of transparency creates legal issues. How your company deals with transparency may be the deciding factor of whether it can compete in this new world.

What do you think?

Related posts:

1. Facebook’s Law Department is Ready to Brawl over Requests for Information from a User’s Facebook Account
2. Legal Reasons Why Your Company Should Have a Social Networking Policy
3. Why your Social Networking Policy Should Address Collaboration
4. Legal Problems of Social Networks
5. Social Networks, Employees and Anti-Discrimination Laws.

Social Media is an ongoing experiment.  Both people and companies are using this new tool to connect with people that they have never met in person.  The main goal of all of this activity is to generate new business.  The million dollar question is how to convert your Twitter followers and Facebook friends into paying customers.

The answer, according to members of the panel convened on October 23, 2009, at the Trust Summit, is to build trust. In front of a packed room of tweeps at the Harvard Club in NYC, social media rockstars Chris Brogan, Julien Smith, David Maister and Charles H. Green, discussed the issue of trust and how it relates to social networking.

According to Chris Brogan, the relationship economy will move the future. The goal of using social media is to create sustainable relationships over time.

In his book Trust Agents, Chris explains that on the web, groups of highly motivated people within every circle have already joined together, helping each other reach a higher ground. I asked Chris, through Twitter,  how professional service businesses (ie law) can harness this group to become clients. I am skeptical that lawyers and other service businesses can use social media to achieve this goal. Chris responded that you need to be a priest and build a church. What he means is that you should use social media to be part of multiple groups that will help your access each group.  Your goal is to be in the center and be the priest.

The trust paradigm is not new. Charles H. Green lectured that you shouldn’t view business through the lens of competition.  The purpose of companies is to serve society.  He argued that competitors should work together to serve the public.  Cooperation between competitors serves everyone interests.

David Sax, writing in Save the Deli observed this spirit of cooperation in the thriving Los Angeles Jewish Deli scene.  Throughout the country, Jewish Delicatessen is an institution that is in decline.  The pastrami is expensive and people are worried about the impact of schmaltz on their cholesterol.  But in LA, the Jewish Deli is thriving because deli owners cooperate.  If Nate N’ Al’s is out of stuffed derma, they call over to Greenblatt’s  for help.   You should do the same when using social media.

As Julien Smith eloquently put it:  “Social media is still an experiment. Be curious of other people when using social media. Only by risking can we create greater things for everyone.”

Related posts:

1. The Best Social Media/Entrepreneur Newsletter of the Year… Chris Brogan
2. What are you doing to build your Community?
3. Social Media for Lawyers II tomorrow (I will be speaking) #sm4law
4. Why your Social Networking Policy Should Address Collaboration
5. Best Law, Business and Legal Marketing reads for the week

There is a growing trend for companies to store information at a remote location, or a “cloud.” Whether you are using Google Docs or have remote servers physically located elsewhere, if you are collaborating with other people and information is not stored on your hard drive, you are probably “cloud computing.”

So who is effected by the move to Cloud Computing?  The move could impact companies such as software companies, internet service providers and hardware manufacturers. Companies in each of these industries will face a big change if more people turn to cloud computing to store their data.

Cloud computing is a terrific alternative for companies who have people working together on a project at different locations.  Because the costs are relatively low, cloud computing makes it easier to conduct business.  However if your business is engaged in posting user information online, you should be mindful of privacy and litigation issues.

Be aware of the types of documents that you post in the cloud and how it can be used by others. Businesses should be especially concerned about posting:

• Business presentations
• Employee work and health information
• Tax and accounting records
• Schedules and Calendars
• Contracts
• Trade Secrets
• Confidential Consumer Information

If your company becomes involved in a litigation, your opposing counsel may ask your cloud hosting provider for access to company records. A business engaged in cloud computing must know that privacy laws vary depending on the physical location of your provider.

The liability and responsibility for any breach of privacy claims is something that a business needs to protect itself against. Companies can limit liability by having a properly drafted document retention policy.

For more reading about legal issues in cloud computing for lawyers, read Niki Black’s article in the Lawyerist.

If you have any questions regarding cloud computing, litigation and privacy law, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

Related posts:

1. Privacy Policy
2. Legal Reasons Why Your Company Should Have a Social Networking Policy
3. Internet Law
4. Legal Problems of Social Networks
5. 23 Legal Issues for Start-ups and Businesses

I will be speaking tomorrow about Blogging at Social Media for Lawyers II tomorrow at New York Law School.

Here is an outline of the topics I will be discussing:

1. Chris Anderson, Free and it relation to legal blogs;
2. Chris Brogan, Trust Agents and how it relates to how lawyers write on the web.
3. Why blogs are powerful;
4. How to get started with your blog;
5. Discussion of WordPress, themes and widgets;
6. Thoughts on what to write on your blog;
7. Ideas on how to draw traffic.

For more: https://www.gothammediaventures.com/commerce/orderform.php?id=60

Social Media:

Social Media for Lawyers II (CLE)

Social media has become a part of the legal landscape. An understanding of Twitter, Face Book, Linkedin and blogs have become critical for understanding clients and their issues as well as emerging as a potent form of marketing and valuable research tools. These sessions will offer a unique and highly target look at social media. A panel of legal experts who have become leaders in the social media arena will offer hands on sessions as well as leading sessions on the inherent risks, limitations and potential vulnerabilities and liabilities of these social media tools.

Session 2: Blogs, Facebook, Linkedin For Lawyers

Registration is available for one or both sessions, and a total of 6 CLE credits will be available, pending accreditation by the CLE Board of the NYS Bar. Financial assistance for these seminars is available upon request.

Registration: For Day 2 Only: $75

Panelists:

Frederic Abramson, Esq. Attorney, Blogger, Social Media Practioner

Deena Burgess, Esq. An attorney specializing in issues relating to social media and technology as well as the representation of entrepreneurs

T.C. Coleman, Esq. Lawyer, Marketing Strategist, Blogger, CEO Upward Action LLC

Roman Fichman, Esq.Frederic Abramson, Esq. Attorney, Blogger, Social Media Practioner

Michael Grygiel, Esq. Chair, Media and First Amendment Law Practice, Hiscock & Barclay; Chairman, NYS Bar Association’s Committee on Media Law

Ronald Minkoff, Esq. Frankfurt Kurnit Klein & Selz, LP; In 2009, he was named a New York-area “Super Lawyer” for Professional Liability

Eric Robinson, Esq. Staff Attorney, Media Law Resource Center; Blogger, Citizen Media Law Project

Cameron Stracher, Esq. Professor of Legal Writing and Publisher, Law Review, New York Law School; Author; Fmr. Litigation Counsel, CBS

Related posts:

1. Social Media Law
2. Is There any Room for Social Media for In-House Insurance Defense Attorneys?
3. Legal Problems of Social Networks
4. Clorox looks to Hire an In-House Social Media Attorney
5. Why your Social Networking Policy Should Address Collaboration

Today I had a discussion with a friend who works as an insurance defense attorney for a large insurance company.  While sitting on a comfy sofa at Book Review in Huntington, Long Island, I began perusing a copy of The Whuffle Factor by Tara Hunt.  The book is about the importance of creating and implementing social capital. We then discussed its applicability to her job. Does social media have any place for an in-house insurance defense attorney?

Her opinion was a resounding no.  As an employee at an insurance company, she has no clients.  Why bother with social media if you are not looking to connect with anyone? I then asked whether she thought it was important to find out more about opposing counsel through researching their profiles on social networking sites?  She said that it was not worth the effort.

Lastly, I asked whether it should be common practice for her to view the social profiles of opposing plaintiff’s.  For example, wouldn’t it be helpful to view the Facebook page of an injured plaintiff?  What if the there is a current photograph of him playing soccer if he is claiming injury to a torn meniscus?  Wouldn’t it help your case?  She said that she thought that there would be a problem in getting the page into evidence (I certainly don’t agree with her there.)

Do you think my friend is right?  Is there a place for social media for Insurance Defense Attorneys?

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1. Clorox looks to Hire an In-House Social Media Attorney
2. Social Media for Lawyers II tomorrow (I will be speaking) #sm4law
3. Why your Social Networking Policy Should Address Collaboration
4. Social Media Law
5. Legal Reasons Why Your Company Should Have a Social Networking Policy