Social Media Law Presentation Slides for MENG Webinar

I recently had the pleasure of presenting a nationally broadcast webinar on social media law to MENG (Marketing Executives Networking Group) which is a national network of top-level marketing executives. You can learn more about MENG by visiting its website and you can learn more about my presentation by visiting MENG’s webpage promoting the webinar.

Thanks to the hard work and experience of the MENG team, the technical aspects of the webinar were very smooth and the participants had fabulous questions that made it even better. Presenting to MENG was a great experience that I really appreciate!

The slides from the presentation titled Social Media Law: It is Real, and, Yes, It Really Can Impact Your Business are available HERE.

 


 

About the author

Shawn Tuma is a lawyer who is experienced in advising clients on complex digital information law and intellectual property issues. These issues include things such as trade secrets litigation and misappropriation of trade secrets (under common law and the Texas Uniform Trade Secrets Act), unfair competition, and cyber crimes such as the Computer Fraud and Abuse Act; helping companies with data security issues from assessing their data security strengths and vulnerabilities, helping them implement policies and procedures for better securing their data, preparing data breach incident response plans, leading them through responses to a data breach, and litigating disputes that have arisen from data breaches.

Shawn is a partner at BrittonTuma, a boutique business law firm with offices near the boarder of Frisco and Plano, Texas which is located minutes from the District Courts of Collin County, Texas and the Plano Courthouse of the United States District Court, Eastern District of Texas. He represents clients in lawsuits across the Dallas / Fort Worth Metroplex including state and federal courts in Collin County, Denton County, Dallas County, and Tarrant County, which are all courts in which he regularly handles cases (as well as throughout the nation pro hac vice). Tuma regularly serves as a consultant to other lawyers on issues within his area of expertise and also serves as local counsel for attorneys with cases in the District Courts of Collin County, Texas, the United States District Court, Eastern District of Texas, and the United States District Court, Northern District of Texas.

Using Social Media in Your Law Practice – Presentation to Collin County Bar Association #ccba

Using Social Media in Your Law Firm

Using Social Media in Your Law Firm

Today I have the pleasure of speaking to a great group of Collin County lawyers in the Collin County Bar Association’s monthly general meeting about the practical and ethical considerations of using social media in a law practice as well as my own tips that I have learned by using social media in my practice.

Here is are Prezi presentation slides — take a look and let me know your thoughts!

Using Social Media In Your Law Practice

 


 

About the author

Shawn Tuma is a lawyer who is experienced in advising clients on complex digital information law and intellectual property issues. These issues include things such as trade secrets litigation and misappropriation of trade secrets (under common law and the Texas Uniform Trade Secrets Act), unfair competition, and cyber crimes such as the Computer Fraud and Abuse Act; helping companies with data security issues from assessing their data security strengths and vulnerabilities, helping them implement policies and procedures for better securing their data, preparing data breach incident response plans, leading them through responses to a data breach, and litigating disputes that have arisen from data breaches.

Shawn is a partner at BrittonTuma, a boutique business law firm with offices near the boarder of Frisco and Plano, Texas which is located minutes from the District Courts of Collin County, Texas and the Plano Courthouse of the United States District Court, Eastern District of Texas. He represents clients in lawsuits across the Dallas / Fort Worth Metroplex including state and federal courts in Collin County, Denton County, Dallas County, and Tarrant County, which are all courts in which he regularly handles cases (as well as throughout the nation pro hac vice). Tuma regularly serves as a consultant to other lawyers on issues within his area of expertise and also serves as local counsel for attorneys with cases in the District Courts of Collin County, Texas, the United States District Court, Eastern District of Texas, and the United States District Court, Northern District of Texas.

Using Social Media in Your Law Practice – Prezi Presentation

Using Social Media in Your Law Firm

Using Social Media in Your Law Firm

I recently had the pleasure of speaking to a great group of Collin County lawyers in the Collin County Bar Association’s Law Practice Management Section about the practical and ethical considerations of using social media in a law practice as well as my own tips that I have learned by using social media in my practice.

Here is are Prezi presentation slides — take a look and let me know your thoughts!

Using Social Media In Your Law Practice

 


 

About the author

Shawn Tuma is a lawyer who is experienced in advising clients on complex digital information law and intellectual property issues. These issues include things such as trade secrets litigation and misappropriation of trade secrets (under common law and the Texas Uniform Trade Secrets Act), unfair competition, and cyber crimes such as the Computer Fraud and Abuse Act; helping companies with data security issues from assessing their data security strengths and vulnerabilities, helping them implement policies and procedures for better securing their data, preparing data breach incident response plans, leading them through responses to a data breach, and litigating disputes that have arisen from data breaches.

Shawn is a partner at BrittonTuma, a boutique business law firm with offices near the boarder of Frisco and Plano, Texas which is located minutes from the District Courts of Collin County, Texas and the Plano Courthouse of the United States District Court, Eastern District of Texas. He represents clients in lawsuits across the Dallas / Fort Worth Metroplex including state and federal courts in Collin County, Denton County, Dallas County, and Tarrant County, which are all courts in which he regularly handles cases (as well as throughout the nation pro hac vice). Tuma regularly serves as a consultant to other lawyers on issues within his area of expertise and also serves as local counsel for attorneys with cases in the District Courts of Collin County, Texas, the United States District Court, Eastern District of Texas, and the United States District Court, Northern District of Texas.

Private Facebook posts are protected by the SCA unless voluntarily provided by friends with access

Facebook logo

There may be some notion of privacy in your private Facebook wall but it is at the whim of your 498 friends — is it really?

A district court recently determined that Facebook wall posts are covered by the Stored Communications Act if the privacy settings are set to limit access to only friends. However, where a Facebook friend is authorized to access those posts and voluntarily provides them to others, the authorized user exception to the SCA applies and there is no violation. For a more complete discussion of these issues see Ehling v. Monmouth-Ocean Hosp. Service Corp., 2013 WL 4436539 (D.N.J. Aug. 20, 2013).

Takeaway: Social media is just like the real world except there is a permanent record of everything you say or do. Do not post something on social media that you would not want publicly broadcast in the real world.

YES, IT IS! > Is a “Like” Protected Speech? Is It Different Than Giving “The Finger”?

To answer the question I asked in a blog post about a year ago, “yes, it is”! The First Amendment does protect a Facebook “Like” as free speech.

Earlier today, the United States Fourth Circuit held that a Facebook “Like” is protected speech under the First Amendment. The case is Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013) and here is a copy of the lengthy OPINION. The Fourth Circuit summed up its analysis on this issue as follows, at pages 40-41:

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43, 54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s Campaign Page conveyed that message to those viewing his profile or the Campaign Page.

NOW HERE IS MY POST FROM LAST YEAR IF YOU WANT TO SEE WHAT I FOUND MOST COMPELLING :)

I was recently asked my thoughts on the “Facebook ‘Like’ Case” on this blog’s Facebook Page and I decided that I would share my thoughts here as well given that this is such a burning issue in social media law. The short answer: I believe it was wrong for the court to find that a “Like” is not protected speech.

Here is the simplest reason I know to demonstrate why:

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Now for the explanation!

The case we are talking about is Bland v. Roberts, 4:11cv45 (E.D. Va. Apr. 24, 2012) (click on the link for the opinion). There are a lot of issues in this case about which I do not profess to have any particular expertise but, the issue that has garnered the most attention is whether a “Like” can be considered “protected speech”. This issue has received a lot of attention and I am not really going out on a limb here because I agree with most of the commentators.

The essence of the case is as follows: Bland was an employee of the Hampton Sheriffs Office, Roberts was the Sheriff, and when Roberts was running for re-election, Bland supported his opponent (Adams) and had “Liked” Adams’ Facebook page. Wanna guess what happened next? Yep – Roberts was re-elected and decided to clean house. Bland sued claiming that his “Like” of Adams’ Facebook page was protected speech.

The Court did not agree and found the “LIke” was not protected speech because it did not make an actual statement:

It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.

*   *   *

These illustrative cases differ markedly from the case at hand in one crucial way: Both Gresham and Mattingly involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

In my opinion a “Like”, like many other forms of expression (verbal and non-verbal) is considered speech and I believe the judge got this wrong and will be overturned on appeal. In the case Hackbart v. City of Pittsburgh, 2:07cv157 (W.D. Penn. 2009), the court found that “giving the finger” a/k/a “flipping the bird” to a police officer was protected speech under the First Amendment. While Hackbart was only a district court opinion, the authority upon which it relied was solid — the United States Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989) — the case that held the non-verbal conduct of burning an American flag was protected speech. So the question is, if it non-verbal expressive conduct of burning a flag or giving the finger is protected speech, why isn’t a “Like“?

On Facebook, you can give a “Like” by virtually pressing the “thumbs up” icon — is that really much different than non-virtually giving the iconic “middle finger up” gesture?

Deactivating Your Facebook While in Litigation May Be Destruction of Evidence

SPOILED WHILE WAITING - NARA - 515470

TAKEAWAY: Deactivating your Facebook account while in litigation may be destroying evidence that could be sanctioned by the court for spoliation of evidence.

In Gatto v. United Air Lines, Inc., et al., 2:10-cv-01090 (D. NJ Mar. 25, 2013), the district court entered an order finding that the Defendants would be entitled to an instruction at trial permitting the jury to draw an adverse inference against the Plaintiff for failing to preserve his Facebook account. The relevant facts regarding this issue are straightforward.

Plaintiff sued Defendants for personal injuries that occurred while he was working, claiming he could no longer do certain activities, no longer work, etc. The Defendants requested information from Plaintiff’s social media accounts in discovery (which is standard course these days) and Plaintiff produced quite a bit of the information from accounts other than his Facebook. He did not provide the requested information from his Facebook account. The parties engaged in quite a bit of fighting over the Facebook account and, just before all of the contents were ordered to be turned over, Plaintiff just so happened to (accidentally, of course) deactivate his Facebook account. Unfortunately–of course–by the time news traveled from lawyers to Plaintiff and back to lawyers, well, over 14 days had elapsed since the account was deactivated and it was now permanently deleted — bye bye Facebook account and everything in it!

Defendants then sought sanctions against Plaintiff for “spoliation of evidence” and sought their costs, attorneys fees, and a spoliation inference for the jury. The court agreed there was spoliation:

Spoliation occurs where evidence is destroyed or significantly altered, or where a party fails to “preserve property for another’s use as evidence in pending or reasonable foreseeable litigation.” Litigants in federal court have a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation, and the Court may impose sanctions on an offending party that has breached this duty.”

The court stated in no uncertain terms that it was irrelevant whether Plaintiff requested that his account be deleted or merely deactivated because either scenario involved the withholding or destruction of evidence. “[I]t is beyond dispute that Plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted.” The court provided a very thorough analysis of the spoliation issue (i.e., you should read the full opinion) and ultimately determined that the appropriate sanction was a spoliation inference.

Now, was this scintillating little blurb enough to make you want to go and read the opinion?

If you have any questions or would like to talk about any of these kinds of issues, please feel free to give me a call (469.635.1335) or email me (stuma@brittontuma.com).

p.s. – I would like to thank Chad Pinson at Stroz Friedberg for sharing this opinion with me – thanks Chad!

Listen to Shawn Tuma discuss social media law issues for business on PlayMakers Talk Show via podcast

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UPDATE: here is the podcast

Shawn Tuma is a featured guest on this week’s PlayMaker’s Talk Show on 570 KLIF in Dallas, Texas. Shawn will discuss several social media law issues that are important for businesses and business owners to consider when using social media. The show airs at 4:00 p.m. today – Sunday, March 17, 2013. You can listen LIVE by going to the KLIF website or stream the show on iheartradio.

playmakers-big

A podcast of the episode is available by clicking HERE to play/download or going to the PlayMaker’s Talk Show website.

You can view Shawn’s blog posts on social media law HERE. If you have any questions or would like to talk social media law, computer fraud, data security or privacy, please feel free to contact Shawn at 469.635.1335, stuma@brittontuma.com or @shawnetuma