January 28, 2013
It’s no longer a question of “whether” professions, businesses and industries should participate in social media but “how” they should participate and manage that participation. Our profession is no exception as our colleagues over at Insider have recently pointed out:
…social media sites are, at their essence, forums for communication. And the status of social media communications create new—and, in many cases, undefined—legal issues that will confront lawyers as those technologies mature.
Here are a few those undefined legal issues frequently researched by Reference Attorneys.
Service of Process
Social networking sites are starting to give legal service a whole new dimension. Although, by no means an established method for service of process, here is an interesting article where the author discusses a case in which an Australian Court authorized the service of a default judgment via Facebook.
See, Schultz, Comment, SUPERPOKED AND SERVED: SERVICE OF PROCESS VIA SOCIAL NETWORKING SITES, URMDLR43 U. Rich. L. Rev. 1497 (2009).
A search such as the following in secondary content in WestlawNext or the TP-ALL database in Classic Westlaw brings up some very interesting articles that may be insightful on what the future of Service of Process may be given the space of social media:
serv! /5 legal process /25 sufficien! insufficien! proper! imporper! adequa! inadequa! defect! /50 Facebook myspace twitter linkedin (social /2 media network!)
Litigants on either side of the case are utilizing data, information, photographs, videos posted on social networking websites as part of discovery and cases are being won and lost based on parties’ willing participation on social networking sites with unintended but serious consequences. It might be wise to think before one clicks the buttons for “like”, “post”, “follow” etc. because all this data will probably exist in perpetuity and one never knows when what might come back to haunt one. “As Facebook and Google track every click you make, the data increasingly are the subject of subpoenas …” Check out the following publications:
Pretrial Involving Facebook, MySpace, LinkedIn, Twitter, and Other Social Networking Tools, 121 Am. Jur. Proof of Facts 3d 1 (Originally published in 2011). This article is quite comprehensive with great information on the subject ofpre-trial issues related to social networking.
Emerging trends in social media sites and other electronic information, 8 Bus. & Com. Litig. Fed. Cts. §92:33 (3d ed.)
Discovery of privacy social media information, 10 Bus. & Com. Litig. Fed. Cts. §106:32 (3d ed.).
If you are interested in further research on this issue, here are some sample searches you may find helpful:
WestlawNext: discovery of information on facebook myspace twitter linkedin or other social media or social networking websites
Terms & connectors in either Classic Westlaw or WestlawNext:discovery /50 facebook myspace twitter linkedin (social /2 media network!)
In U.S. v. Fumo, 655 F.3d 288 (C.A.3 (Pa.), 2011), the Third Circuit citing another case stated,
“The theory of our system,” wrote Justice Holmes, “is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907). Justice Holmes, of course, never encountered a juror who “tweets” during the trial.”
I remember the story about Steve Martin tweeting while on jury duty awaiting selection. This particular instance was hilarious but certainly not funny given that juror misconduct costs our judicial system in terms of time, money, effort and justice. In re the Steve Martin article, here are some of the comments from a Los Angeles Times article:
Tweeting over the last couple of days, the stand-up comedian, movie star, musician and author has regaled his 380,000-plus followers on Twitter with observations inspired by the legal process unfolding before him. Using his Twitter name @SteveMartinToGo, the prospective juror at 12:10 p.m. Monday tweeted: “REPORT FROM JURY DUTY: defendant looks like a murderer. GUILTY. Waiting for opening remarks.” A follower named @luvjack713 warned: “If you’re really on jury duty you could get into trouble tweeting from it AND announcing he’s guilty!!! Careful Steve!” He quickly responded: “(I’m kidding) Shhhh…..” And then he kept at it: “REPORT FROM JURY DUTY: guy I thought was up for murder turns out to be defense attorney. I bet he murdered someone anyway.”
Steve Martin jokes about jury duty, 2010 WLNR 25276826.
I came across another interesting article published in the Omaha World Herald entitled: Only in The World-Herald: Some jurors guilty of not-so-smartphone behavior; 2012 WLNR 2218751. This article discusses the various scenarios in which jurors have gotten into trouble for use of social media and networking while on jury duty. In WestlawNext if you try a search such as tweeting and friending as a juror, the search brings up a lot of great information on the subject in multiple content categories.
Privacy and Personal Information:
Suits by subscribers or users of the social networking sites against such social media companies for misappropriation of personal information is certainly one area that is generating a lot of legal buzz. It impacts us all. Even if I don’t voluntarily put my personal information online, how do I stop a niece from posting my picture on Facebook. At some level, one has to accept that the concept of privacy has changed and must submit to some of the newly defined, looser definitions of privacy. For a general search on the subject I tried a plain language search in WestlawNext in All State and All Federal Category: misappropriation of personal information and invasion of privacy on social networking websites such as facebook myspace.
There are legal issues arising not only based on how social media companies are utilizing the personal information that has been voluntarily put up on their websites, but there is litigation related to such sites affirmatively accessing other personal information on the users’ computer or mobile device. A suit filed this year accuses Facebook of monitoring a user’s internet activity even after the user logs off Facebook. In WestlawNext, see, Julian CARROLL, On behalf of himself and all others similarly situated, …e Corporation, Defendant., N.D.Cal. January 24, 2012, 2012 WL 251630.