Tuesday, 8 January 2013

Legal Social Media Roundup 2012

If you consider Google trends (screenshot below), it gives one a sense of the enormity of growth in social media over the past decade.  The onslaught of technology and a culture of instant communication have forced legal systems to adapt. Nimble and dynamic are not the type of words you would typically associate with the tradition and formality of law, however, the global legal systems have adapted, and in some cases, change has been dramatic.

Google trends social media
Google trends on social media

The digital world is evolving.  Large corporate entities view social media as a key part of a marketing or sales strategy with spending in this environment at all-time highs.  For a useful view of the 30 largest corporate advertisers on social media in 2012, look here.

The trends insofar as Google search may be slowing, or even flattening, but there is no going back now. The next few generations are taught on iPads, eat meals with a Blackberry and become familiar with technology and smart phones from an early age.  The pressing need to be bigger and better has infused technology into everyday life; the effects appear irreversible. Service of legal process via Facebook, the American Bar Association amending its professional rules of conduct, Samsung v. Apple turf war, multi-million dollar civil defamation awards and jail time – 2012 was a year of rapid development in the digital legal environment.  The training wheels are off and we are now moving at a rapid pace. 

1. Formal recognition of social media

One of the most respected legal institutions globally, the American Bar Association (ABA), has amended its professional rules of conduct to incorporate social media.  Lawyers are taking instruction on social media, using social media in preparation and discovery and liaising with clients (and potential clients) online.  The playing field is changing and the ABA appear alive to the nuances of social media.

In addition to the formal rules change, the ABA has released a practical guide to social networking for lawyers and has a vast resource section with many useful links.  Social media is no longer a nice to have or a “young thing” not relevant to certain individuals.   I would imagine that bar associations around the world will follow the example set by the ABA.

2. Service of legal process

Technology and law do not always sit comfortably together.  The nature of technology is diametrically opposed to that of law; one is measured and steady, the other is rapid and dynamic.  Consequently, certain jurisdictions have been (and continue to be) reluctant to adapt to changes in communication and technology.  However, in the last few years we have seen certain courts accept service of legal process via Facebook, electronic exchange of pleadings, internet streaming court coverage and many other technological advances.

South Africa took its own digital legal leap forward in this space in August 2012 when the Kwa-Zulu Natal High Court, in the matter of CMC Woodworking (Pty) Ltd v. Pieter Odendaal Kitchens, decided that service via Facebook can be appropriate in certain, limited circumstances.  This follows the global approach adopted by the USA, UK, New Zealand, Canada and Australia.  Worldwide, the jurisprudence in areas involving technology and law are developing quickly; largely the development is just about keeping pace with modern society.

3. Social media in discovery process

Given the vast swathe of users that now populate the Facebook servers, the information posted, uploaded and commented on is no longer restricted to the entirely mundane and irrelevant.  Frequently, this information (whether status update, photo, tags, comments) is being called on for the purposes of proving or disproving litigious matters.  It is a delicate debate that basically boils down to relevance of material versus privacy (right not to be annoyed, embarrassed, oppressed).

In July 2012 in the matter of Trail v. Lesko, a United States court in Pennsylvania had occasion to carefully consider the issues relating to the scope of discovery of social media (particularly Facebook although the principals articulated can apply to any platform). 

The nub of the debate is that a platform such as Facebook is inherently public and a user’s personal information is inherently private. A user’s right to privacy will usually override a discovery motion for social media UNLESS the party to proceedings can show that the information sought would assist (the use of the word assist is broad, and the information sought must be necessary and material) the requesting party in presenting its case. 

In an articulate and well-reasoned opinion, Judge Wettick notes that the “consistent train of reasoning” found in the case law is to require the party seeking discovery to point to facts suggesting that relevant information may be contained within the private portions of a user’s Facebook profile.  Additionally, metadata (technology based information verifying certain facts or documents) may also be requested in the discovery process and I anticipate this becoming commonplace.

It is important to keep in mind that courts will not allow open ended “fishing expeditions” nor will they simply allow access to a Facebook profile because it exists or because there may be useful information.  The scope of social media discovery will be limited, and will only be permitted if the requester can show that the intrusion of privacy is justified in the circumstances (circumstances will change on a case-by-case basis).

4. Social Media Defamation

The law of defamation has coped with the transition from paper to digital without the need for amendment.  The consequences for the publication of a defamatory statement, whether written with ink on a newspaper or typed on a laptop keyboard, are the same; as a result, defamation on social media platforms has been on the rise.

The apparent anonymity of the internet often means that people do not think clearly before posting a rash comment on social media platforms.  If you are comfortable saying something in front of a crowd of 40 000 people, then post it on Facebook or Twitter, if not, rather leave the thought in your head or potentially face a Facebook defamation action.

The Lord McAlpine Twitter (former conservative leader from the United Kingdom) issue provides a poignant example of social media posting gone wrong in 2012.  The former Tory MP was accused of being a pedophile on a BBC documentary.  This prompted a raft of Twitter users, as well as a morning television show host, sharing the story and commenting on the alleged pedophile.   

As it happens, Lord McAlpine did not take kindly to the allegations and settled libel matters with both the BBC and ITV.  His attorney confirmed that, at the time, there were 1000 libelous tweets (posts) and 9000 retweets (forwards) on Twitter; all of which could potentially result in libel actions!

The potential for defamation actions is enormous with the now commonplace “Web 2.0” technology.  Basically, Web 2.0 is a reference to technology used by websites which give users the ability to dynamically post and upload information.  In the past, web pages were static whereas in today’s environment, most web pages allow photographs, information to be uploaded and dynamic interfaces; the best example of the new methodology is social networking sites such as Facebook and Twitter.

Lastly, the monetary damages one may be liable for in a defamation claim online are substantial. In April 2012, a couple in Texas were awarded 13 million dollars for child molestation claims made against them.  Obviously, the severity of the comments and circumstances of the particular matter will dictate the amount of damages a competent court awards.

5.  Criminal liability for comments on Social Media

In the midst of a heated English Premier League football match between arch enemies, a 15 year old boy posted racially offensive comments on Twitter and was arrested for a racially aggravated public order offence.  He was released on bail.

This is not the first time this has happened, and certainly will not be the last; in 2012 potential jail time for comments and conduct on social media started becoming a reality many cannot even fathom. A Welsh student was sentenced to 56 days prison time for the same offense in early 2012.

2012 has been a year of material development for the digital legal world.  Social media is now formally recognized and technology is steadily infiltrating the global legal system.  It is now a matter of “when” and “how” and not “if” and “why” insofar as technology and law is concerned


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