social networking

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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?

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Internet Defamation Law is becoming an increasingly important problem. Bloggers and anyone else using social media need to be aware of what they post online.  There is a serious threat of what you post can result in litigation.

I recently reported that there has been a 216% increase in libel lawsuits against bloggers.  Courtney Love’s Twitter defamation case is not going away.

Yelp, the popular review site, has been at the center of the debate because people are using the service to write reviews that are untrue.

$1 million judgment, including an injunction and costs was granted against a defendant who persisted in posting false and defamatory statements in online forums regarding his fraudulent transactions at the expense of an online company. (thanks @jdtwitt)

How do you know if a statement that is written online rises to the level of  Defamation?

Defamation is an invasion of the interest in reputation and good name of a living person, which holds that person up to hatred, contempt, ridicule, or shunned by others (William Prosser, Law of  Torts 737 (4th ed 1980). You can sue both an individual and a company for defamation. Libel is written defamation, slander is oral.  A defamation claim may also raise the issue of intentional infliction of emotional distress.

Publication: The statement must be disseminated to a third party before a lawsuit can be commenced.  What this means is that other people must be aware of the remark before you can claim that someone’s business interests are damaged.

If the conversation is in email form and only the sender and recipient are  involved in the conversation, there is no cause of action.   Section 230 of the Communications Decency Act generally protects online service providers from being sued as a result of defamatory postings by users.

Damages: You must prove that you have been harmed in some way.  There are some cases where you don’t have to prove damages.  They are:

  • any remark about the unchastity of a women (sounds really antiquated)
  • imputation of a crime or of a loathsome disease
  • any statement about that person that affects his or her business reputation.

Before you race over to my office, you need to consider the following  issues to assess whether there are any defenses :

  • Is the work a parody? “Fake” Web sites and social media profiles appear to be a developing trend.
  • Is the person a alive, a public figure, private person or politician?
  • Is there anyone else objected to the post?
  • Are the statements made wrong?
  • Has anyone changed any of the content?
  • Is the statement or any of the alleged remarks true?
  • Is the remark accurate?
  • Has the publisher of the statement checked whether the remark was accurate?
  • When was the statement made? You must be aware of the statute of limitations.
  • Does the person who you would like to sue have insurance?  Without a deep pocket, your judgment is worthless.

What should you to protect yourself from Defamation lawsuits if you are a blogger?

If you are a content provider or blogger, you may find yourself facing a defamation lawsuit even if you did not write the remark.  For example, you may be liable for not reviewing the material posted on your site.  I would recommend that you purchase  E&O insurance.  You should also check your homeowners insurance policy, as many policies provide  coverage for defamation related lawsuits.

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There is no question that the Internet has changed the way companies hire people.  Currently 45 percent of employers use social networking sites and conduct online searches to screen applicants.  If you are a job applicant, that means that your potential employer is reading you Twitter feed and analyzing your blog posts. 

While it is not illegal for an employer to to search a candidate’s social networking profiles, there are risks. In an article written by Jeffrey S. Kein and Nicholas J. Pappas for the New York Law Journal, they highlight a number of legal issues arising out of employees’ use of social networks. They list Anti-Discrimination Laws, Legal Activities Laws, National Labor Relations Act, Terms of Service Violations, Privacy Implications and Business Considerations. I will briefly discuss the the legal implications of Anti-Discrimination Laws.

ANTI-DISCRIMINATION LAWS

By simply viewing a candidates social networking profile, certain information can be gleaned that can be a basis for a claim under discrimination laws. For example,  if an employer views the LinkedIn profile of a candidate and the employer decides not to hire the candidate or take action within a short time because the candidate lists that she is handicapped, the employer could be held liable.  The mere fact that the employer viewed her social networking site can be used as circumstantial evidence of discrimination.

Under New York Law, an employer must use the same standards when deciding who to fire.  The authors cite an Simonetti v. Delta Airlines, where Delta decided to fire a female employee because she posted revealing photographs online. She argued that she was being discriminated against because other male flight attendants also posted similar content and were not fired.

 

 

 

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Your employees are probably participating in social networking sites such as Facebook, LinkedIn and Twitter. But what are your workers doing on Facebook while on the clock? Are they networking or are they sharing their 5 favorite beers? On the one hand, you want to trust your employees and make them feel like they have autonomy to perform their work duties. On the other hand, you are paying them to work and you want them to present themselves professionally.

Recently, staffers of The Wall Street Journal were provided a compiled list of rules for “professional conduct” which regulates online behavior. Should your company follow the lead of the Wall Street Journal and draft a written social networking policy advising what your employees can post while working at the office? If you would like to limit potential company liability to lawsuits, the answer is yes. Here are 5 reasons why:

1. A written social networking policy may shield your Company from defamation lawsuits. What happens if your employee starts posting on Facebook untrue statements about a competitor? Without a written social networking policy, your Company could be sued for defamation.

2. Potential disclosure of Company proprietary information. Let’s say that your business has created the next killer app that will be ready to launch in 3 months. By having a non-disclosure section written into your social networking policy, your employee would be on notice and could be held liable for posting on LinkedIn such information.

3. Your business’s social networking use policy should encourage positive and constructive use of the social networking sites, as well as to prevent the use of such sites for personal or inappropriate reasons. You could be held liable for anything that your employees say of a personal nature on social networking sites.

4. Potential use in litigation. Information disseminated by your employees on social networking sites can be uncovered by a potential adversary and used against your company in litigation. Therefore, you should be clear about the type of topics that can be discussed on social networking sites.

5. Intellectual Property. Trademark and Copyright laws extend to what your post on social networking sites. Your social networking policy should make clear that your employees should refrain from posting trademarked or copyrighted material while representing the company.
So, your Company should regulate social networking use in a more expanded way than the way you regulate other Internet use. By being upfront about the potential problems of social networking, you could help both you and your employees successfully utilize this tool and avoid unwanted lawsuits.

Further Resource:

Online database of social networking policies.

Contact the Law Office of Frederic R. Abramson at 212-233-0666 for more information about social networking policies.

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Twitter has only been around for a few years.  As a business owner, you are probably wondering how to use the service to grow your local business. Here are a few ideas:

1.  Follow as many people in your target market as possible.  If you are searching for Internet marketers, twitter is a gold mind. However, if you are looking for business owners in the construction industry, your task will be more difficult.  I would suggest using  Twellow, a twitter yellow pages which categorizes tweeters by industry and location.  Another option is using  Google advanced search.

2.  Create a Twitter tribe.  Seth Godin has been spending the last year pushing his idea of the importance of Tribes. If you can create  a Tribe of 1000 local Twitters who eagerly anticipate your every Tweet, I guarantee that you will obtain new customers.

3.  Follow mavens on Twitter. If you don’t know what a maven is, read the Tipping Point by Malcolm Gladwell.  On that note, read anything that Malcolm Gladwell publishes.

4.  Never eat lunch alone.  Invite one Twitter follower a day to lunch.

5.  Invite your favorite Twitter followers to join you on other social networks, such as Facebook and Linkedin.

6. Tweet information in your field that demonstrates that you are a leader in your industry.  If you own a restaurant, link to articles about Thomas Keller.

7. Create amazing content on your blog. Use Twitter to drive traffic to disseminate your produce and your ideas.

8.  Create a Tweetup.  It is simply not enough to sit around the computer or iPhone all day and tweet. You need to actually meet your followers in the flesh.

9.  If you live in New York, go to a Mashable event.  People who tweet love Mashable.

10.  Invite your Twitter followers to work from your office.

11.  Provide exclusive offers to your followers on Twitter.  Follow Dell.

12.  Be real.

13.  Don’t push your products all day.

14.  Be curious and engage your followers.

15.  Be funny.  Considering the space constraints, this is extremely difficult.

16.  Be memorable.

17.  Have fun!

Please be advised that I am a New York business law attorney and I am not one of those self-proclaimed Twitter gurus.  Feel free to share your riffs on how to use Twitter to build your local business in the comment section of this blog. I would love to hear from you.  If you are in the New York area, lets have lunch!

Legal Problems of Social Networks

February 12, 2009

You are probably using social networks such as Twitter, Facebook and Linked in for a variety of purposes, from updating your status, to networking with college friends that leads to new business. Although thee law on social networks is evolving, there are several issues that you need to be aware of to protect yourself legally. Listed below are 5 issues that you need to be aware of regarding the legal problems of social networks.

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