Posted by Chris MacNaughton on Mon, Jan 11, 2010
Identity theft, parodies, and copyright infringement have quickly made their way into the Twitterverse, bringing with them legal implications and cause for concern. Not only does Twitter, and social media sites in general, make it possible for imposters to spread misinformation or damage reputations, companies are concerned with their intellectual property and logos.
Sports stars and celebrities have been concerned with Twitter identity theft for a while now. After all, anyone can create a Twitter user account and pretend to be whoever they want. For example, go into Twitter and enter "Oprah" into the Find People link and you'll see a slew of wannabe Oprahs including the real "Twitter verified" Oprah (@oprah) as well as users who are clearly imposters with name variations, assorted punctuation marks, and misspellings. Most use pictures of Oprah as their avatars. And it works. Some of these imposters have tens of thousands of followers!
So, what's wrong with creating a fake celebrity account and pretending to be the celebrity in question? What's wrong with using someone else's image as an avatar and then tweeting as if you were that person? These are rhetorical questions as we all know that doing so is wrong. But a question of right or wrong doesn't bother Twitter identity thieves. And they don't only target well-known celebrities. Baseball coaches, newspaper reporters, and students have all been victims of social media identity theft. Whether the intent is "a joke" or outright cyberbullying, Twitter imposters have caused harm to their victims.
Twitter has been experimenting with a "verification" feature to let users know if a Twitter user is really who that user says he is. Currently, this feature is used on a case-by-case basis, primarily for prominent users such as celebrities and politicians.
On the other hand, parody accounts are allowed on Twitter. Twitter's impersonation policy states the following:
"Impersonation is pretending to be another person or business as entertainment or in order to deceive. Non-parody impersonation is a violation of the Twitter Rules.
The standard for defining parody is "would a reasonable person be aware that it's a joke?" An account may be guilty of impersonation if it confuses or misleads others-accounts with the clear INTENT to confuse or mislead may be permanently suspended."
The twitter account "@jackbauer" parodies Jack Bauer of Fox's hit show, 24. The account's bio says, "If everyone listened to my instructions, it'd be called '12'." Does anyone believe that a television character is really tweeting? Not likely. Is there an intent to confuse or mislead? Not likely. This is an example of a parody account. It's a joke account that is allowed under Twitter's impersonation policy.
Just as impersonation and parody are separate, yet closely related, so are parody and copyright infringement. One of the tests between parody and infringement is whether the parody is clever enough to avoid confusion as to whether it is the original or a spoof.
Companies and individuals have filed lawsuits against Twitter for copyright infringement and identity theft. According to the Connecticut Law Tribune, Oneok, a natural gas distributor, alleged trademark infringement against Twitter after discovering an anonymous user using the user name "Oneok_i" along with the Oneok logo. The lawsuit was later withdrawn after Twitter closed the other account. Another lawsuit, filed by Tony LaRussa, baseball manager of the St. Louis Cardinals, was filed when LaRussa discovered an imposter who was tweeting using his identity. The account was suspended and the lawsuit withdrawn.
Impersonation, parodies, and copyright infringement are likely to continue as Twitter grows. While the medium is relatively new, these issues are not. Your thoughts? We'd love to get the discussion going.
Posted by Chris MacNaughton on Mon, Jan 11, 2010
LinkedIn, Twitter, Facebook, blogging, and other forms of social media are extremely popular with people from all walks of life including professionals. But what about lawyers, paralegals, litigation support managers, and legal secretaries? Should you jump in? Before you start tweeting about your piles of paperwork and what you had for breakfast, consider what you can bring to social media as well as what you can get out of it.
Your Professional Persona
No matter which social media platform you choose, as a legal professional, it's crucial that you pay close attention to your professional persona. While many bloggers and tweeters may go off topic or rant and rave about something, you are not a traditional blogger or tweeter. Keep your professional persona in mind with every word you type.
Your Area of Expertise
Next, center your social media conversations on your specific area of expertise and begin building a community around your platform. For example, if you specialize in estate planning, blogging about DUI laws is outside your area of expertise. Your followers are expecting helpful estate planning tips, not news about DUI laws. Think of about three core topics within your area of expertise and rotate your content based on these areas. For an estate planning blog, you might write about wills and trusts one week, health care directives the next, and probate issues the next week before tackling another will and trust issue and repeating the cycle. Over time, you will become recognized for your expertise in your chosen area.
Your Personality
While it's not advisable to tweet about what you ate for lunch, the occasional personal blog post or tweet shows that you are a real person, not a walking law book. Use care when posting personal entries and keep your professional persona in mind when you do. For example, which of the following personal tweets would be appropriate:
"Looking forward to reading Making Your Case: The Art of Persuading Judges."
"I think Oprah should avoid wearing red and should stick to less flashy colors."
What Can Social Media Do for You?
Certainly, you have a lot to contribute to social media. However, social media isn't a one-way outlet where you broadcast information to the masses. As you get involved in social media, you'll quickly discover that social media has many advantages including:
• Networking - You will be interacting with others, many of whom may be colleagues. As you share information through your blog, Facebook page, or Twitter, you will also be gaining information from others. This exchange of information gradually builds a community of like-minded individuals.
• Improve Communications Skills - Blogging and posting comments on social media sites forces you to brush up on your writing skills. Blogs and social media sites are not the place for legalese and academic writing. Instead, you must write concise, easy-to-understand entries.
• Give Your Firm a Face - If you are blogging on behalf of your law firm, you are becoming more approachable. Your potential clients may check your Facebook profile long before they make the first call for a consultation. By being mindful of your professional persona and focusing your social media efforts on your area of expertise, you will stand out as an approachable legal professional with the expertise the client needs.
Social media is a terrific tool for professionals from all industries when used appropriately. Keep your professional persona in mind at all times and frame yourself as an approachable expert. As you build your community and interact with others, you may realize another key advantage: new clients.
Posted by Chris MacNaughton on Mon, Jan 11, 2010
An Associated Press article, Florida judges, lawyers must ‘unfriend' on Facebook, published on Saturday, December 12th, brought up an interesting topic: How ethical is friending for the legal profession? While the article discussed friending between lawyers and judges, another ethical consideration involves covert friending of witnesses and litigants. Whether you're using social networking to connect with your colleagues and peers or to gather information, you're in relatively uncharted territory.
Friending other Law Professionals
The AP article covered a November 17th ruling by Florida's Judicial Ethics Advisory Committee suggesting that online friendships, such as Facebook "friends" and "fans" between lawyers and judges could create an impression that lawyer friends may influence judge friends. An argument against the ruling brought up the point that the relationships are more like contacts and acquaintances.
The ruling specifically mentioned Facebook, extrapolating that it applies to other social networking sites. For example, the opinion said, ". . . the holding of the opinion would apply to any social networking site which requires the member of the site to approve the listing of a 'friend' or contact on the member's site."
The Judicial Ethics Advisor Committee concluded that it's okay for judges to interact with other judges and that lawyers can become "fans" of judicial election campaigns during elections. The overall tone of the ruling is that of caution. The article brought up these points:
• Judges and lawyers friending each other online can cause others to wonder if the lawyer will receive special treatment in the courtroom because of the online friendship.
• While judges and lawyers can certainly be friends, a public display may create an impression of impropriety amongst the public.
Friending Witnesses and Litigants
In addition to the controversy of friending judges, is that of friending witnesses and litigants. While it's unlikely that a lawyer would "friend" a witness, what about doing so covertly to discover evidence? What if a witness had a private Facebook profile that you wanted to explore? Is it ethical to friend the witness? What about having someone unknown to the witness become a "friend"?
The Philadelphia Bar Association Professional Guidance Committee published an opinion in March 2009 covering these behaviors. Several Pennsylvania Rules of Conduct were implicated in an inquiry about having a third party friend a witness covertly including:
• Rule 5.3 - Responsibilities Regarding Non-Lawyer Assistants
• Rule 8.4 - Misconduct
• Rule 4.1 - Truthfulness in Statements to Others
Rule 5.3 states the following:
With respect to a non-lawyer employed or retained by or associated with a lawyer: ...
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; ...
Rule 8.4 states that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ...
Rule 4.1 states that:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; ...
The opinion goes on to cover even more rule violations and discuss rulings covering the reach of rule 8.4. However, the above three rules provide sufficient guidance to make an informed, ethical decision.
What are your thoughts? Do you have online friends in high places? Is social networking addressed in your law firm?