Here to Stay
Beware of your firm’s social
media usage. Whatever you put on it, someone will have a copy.
And litigators love that.
This morning, my daughter, who just discovered the
“Back to the Future” movie franchise, was asking
about what things were like way back in 1985. I waxed poetic
about the joys of the pre-Internet, pre-cell phone era, no
doubt confirming my daughter’s suspicion that her father
was a technology curmudgeon. I was late to an in-home Internet
connection, late to cell phones, late to crackberry-inspired
all-email-all-the-time. And now—no surprise—I am
late to the social media revolution.
In a basic way, Facebook, LinkedIn, Twitter, etc. present no
new legal risks or exposures, but such social media do have the
potential to magnify current risks for two fundamental
· Assume that whatever you put on the Internet is
permanent. It never goes away. Today there are new
“service” firms that have a single mission: to
create a permanent archival copy of every page ever created on
the Internet. I do not know whether these Internet archive
companies are succeeding, but I presume, if they aren’t
yet, they will be soon.
· The Internet virility phenomenon may be the all-time
best example of a double-edged sword. The power of the Internet
in general, and of social networking platforms specifically, is
in their potential to distribute information at the speed of
light. The viral nature of the dissemination poses a tremendous
threat because a casual remark published through social media
can almost instantaneously show up on cell phones and in email
in-boxes around the world. Nearly every week, a marquee
professional athlete proves this with another ill-advised
For insurance agencies and brokerages, social media may
enable you to better communicate with current and prospective
clients by providing real-time updates on issues of concern as
well as a potentially potent marketing platform. It also
enables clients to more efficiently communicate with you and
other clients, which may help you listen better (one of the
hallmarks of the new model) and build more effective
In harnessing the power of social media, be conscious of the
normal legal exposures inherent in any corporate communications
and public relations endeavor. These include, but are by no
means limited to:
· Antitrust. There is no
faster way to facilitate an inappropriate conspiracy than
through the magic of the Internet.
· Intellectual property
rights. The Web is also the best platform for
misappropriating the work of others (and the best way for them
to monitor such infringements on their rights).
interference. Anything you want to say about a
competitor in this medium will be heard by all.
· False advertising/deceptive
practices. See above.
· Breach of contract.
Social media providers have rights, too. They memorialize them
in their usage policies, to which your firm is bound when it
accepts those terms.
issues/privacy. Courts have found that employees have no
privacy rights to the Web pages they access and to which they