Social Media Continues To Impact Litigation and Trial

The impact of social media  (Facebook, Twitter, LinkedIn, etc) continues to grow in legal matters including litigation and trial.  The court decisions cut across numerous areas from employment law and personal injury to privacy rights and defamation.  Social media use has involved all the key players in lawsuits inclding judges, jurors, consultants, attorneys, reporters, and witnesses.  Lawyers are using Facebook to screen jurors; jurors are using Facebook to post about the case they are sitting on; judges are checking Facebook to make sure jurors are not using it; jury consultants are following Twitter to give advice on trial strategy to attorneys during the trial; and reporters are giving first hand accounts of trials 140 characters at a time. Bottom line: Social media is everywhere and lawyers and litigants should pay attention.

In keeping up to date on the topic, here are some new resources and  articles on social media and litigation and trial:

Vianei Lopez Robinson published an article for Texas Lawyer featured on Law Technology News that covers some recent decisions involving Facebook and the discovery of public and non-public information.  The article also discusses some of the ethical implications for attorney’s "friending" litigation opponents. 

Dan Schwartz’s Connecticut employment law blog continues to cover social media for employers. He recently posted a new update for employers on the newest social network site, Google +. 

Corey Dennis, who previously submitted to this blog a great summary on the basics of Connecticut civil procedure, has just published a comprehensive law review article on social media and the various laws implicated by its use. Here is a link to his article for the Massachusetts Law Review. 

 Leita Walker and Joel Schroeder published a thorough review of social media "crashing into the courtroom" in an article posted by  The article describes several recent cases, juror misconduct with social media, attorney use of social media in discovery and cases ranging from employment to trademark matters.

A year or two ago it used to be relatively easy to track social media and the impacts on lawsuits and litigation. There were very few cases, and I posted about most of them.   Now, there are new reports and articles,  cases, and legal issues involving social media almost daily.   Just today,  a Google search of social media and trial brings up articles about the Roger Clemens perjury trial and the Casey Anthony murder trial. 

The bottom line is social media is here to stay and has clearly "crashed into the courtroom."  Attorneys, and especially trial lawyers and litigators, have to become familiar with all the legal implications as social media just might crash into one your cases.   

Will The “It Was Just A Tweet” Defense Work In The First Twitter Defamation Trial?

As mentioned before on this blog, Courtney Love was sued for defamation arising out of
her notorious Twitter posts. As the case heads to trial on February 6th, she has taken down her Twitter page. Recall that Love was sued by fashion designer Dawn Simorangkir for a series of allegedly defamatory tweets. (She called her a drug-pushing prostitute for starters). THR, Esq Bloggers Matt Belloni and Eriq Gardner have a good summary of what’s expected at the upcoming trial.  Simorangkir’s lawyer claims it is the first case of its kind, and he may be right.

Legal observers are paying attention to whether the court or jury gives more leeway to someone posting on Twitter because tweets by their very nature are opinionated posts. According to legal blog watch, the case is also likely to feature another first, a social media expert.   Jessie Stricchiola is the expert.  Apparently, as a social media expert, she will testify as to the nature of Twitter posts, number of readers, and credibility.

My own opinion is that there should not be any special consideration for commentary on Twitter.  The posts or tweets should be judged under the same standard as any other potentially defamatory statement.   Twitter is now part of the mainstream media. Take for example the recent Hayes trial in Connecticut. There were numerous reporters “live tweeting” from the courtroom. Most media personalities and journalists have twitter accounts where they regularly report and tweet facts. The reverse is also true. Journalists are now reading Twitter posts to get news stories.

The statements at issue here appear to be defamatory (assuming she is not a drug pushing prostitute) and stated as fact.  I think the “forgive me, it was just a tweet” defense is not going to work.  The idea that statements posted on Twitter are somehow less defamatory ignores the reality of the Internet.  Perhaps Love’s lawyer is banking on the jury not understanding Twitter.  The counter to that defense was the social media expert.  If the expert is able to help the jury understand Twitter, and assuming there is no truth to these statements, I suspect the bigger issue will be whether any damages can be established. We will have to wait and see. I will do another post about this case once the trial finishes.

Social Media Attorney – A New Niche To Address A Growing Concern For Business

I have written several posts on risk management and litigation arising out of social networking or media websites such as Facebook, Twitter and LinkedIn. Dan Schwartz’s Employment Law Blog includes coverage of a variety of concerns with use of social media and the need for internal policies and procedures.  While Dan’s blog covers employment law and this blog covers business litigation, social media ends up a frequent topic on both blogs.  In fact, you can read about social media on legal blogs across the country covering litigation, intellectual property, privacy, defamation, and the first amendment.  

Some say social media is a fad so why the extensive coverage on legal blogs?  The facts is that as the use of social media continues to grow and involve massive numbers of users, so does the risk of litigation and potential for numerous other legal issues.   To see some staggering statistics on social media,  check out the link to this video I came across on Tyson Snow’s blog Social Media Esq. The video is by Erik Qualman, the author of socialnomics.  Here is a link to the video on YouTube (social media revolution 2 refresh).

If you want a real world example of social media’s growing impact on the legal industry, consider Citigroup (Citi).  Citi posted on its website a job listing for Associate General Counsel.   The Citi job is not for auditing, compliance, or litigation.  Instead, in what may be a new trend, the Citi job is for Associate General Counsel-Social Media Attorney.   Citi is not alone.  Clorox also sought out an attorney to oversee its social media programs. I expect more companies will follow with new stand alone social media attorney positions.

The responsibilities posted for the Citi position give business owners a snap shot of the potential areas for concern. As posted on its website:  

The Citi Social Media Attorney will be responsible for the legal oversight of social media in three spheres:
A.        Citi-sponsored media such as company websites, Twitter accounts, and   YouTube;
B.        Social media interaction between Citi and the public/third parties; and,
C.        Employee participation in social media, as site user and/or site administrator.

The specific duties of the Citi Social Media Attorney provide a glimpse of the need for management of a vast array of legal areas.  The duties for the Citi job include:

•           Continued development and management of documentation for Citi-sponsored web initiatives (internal and external).
•           Lead establishment of legal risk framework for the Company’s social media efforts.
•           Work with specific business counsel to ascertain approval of content, as appropriate.
•           Consolidate, identify and address legal issues presented in content submissions for the social media sponsor.
•           Help establish consistent processes for vetting and replying to comments in interactive environments (websites, Twitter, etc) and promote consistency of policy implementation and risk-related practices.
•           Help protect Citi intellectual property in the world of social media.
•           Help oversee negotiation and drafting of contracts with third parties such as social media providers and content sources.
•           Serve as a resource for Citi’s business areas and business counsel as to inquiries regarding legal risks and parameters for social media.
Citi requested that the attorney for this position have experience in:
Advertising, Intellectual property, Information privacy/data security including specifically relevant sections of Lanham Act; Copyright Act as amended by Digital Millennium Copyright Act;  FTC Act and Guides (including recent Endorsements/Testimonials Guidelines); rights of publicity/privacy; promotions law; defamation law; Communications Decency Act.


In my view, Citi has smartly recognized that managing social media does not fall into a traditional field of law such as advertising or intellectual property alone, but rather overlaps several areas that can rapidly change.  As such, proper management of social media issues for a large company likely requires a dedicated position.  This could be a sign of a new practice area or niche: the Social Media Attorney. Either way, it certainly confirms that business and employment attorneys need to understand these areas of law to address the risks clients face as the use of social media continues to grow.

Lawyers Going Fishing on Facebook – – Is It Ethcial?

Lawyers are all over Facebook and LinkedIn.  What are they doing?  If they are not marketing or social networking, they are fishing or "mining" for information about individuals and businesses.  They are looking for this information to help with lawsuits.  The business and employment trends involving social media are growing and as a result we will continue to see a variety of different lawsuits and legal issues involving some aspect of Facebook, LinkedIn, Twitter, MySpace and YouTube.  For example, read the posts yesterday by Dan Schwartz’s Employment Law Blog detailing how privacy settings on Facebook permit easier production in electronic discovery and how facebook wall postings might be unavailable in discovery and deemed private. 

One of the issues lawyers will have to address when mining for data on Facebook and other sites is how to get the information.  Do you seek the material in discovery and possibly risk a judge deeming the information unavailable as private or irrelevant?  Do you just limit your search to what is publicly available?  Better yet, what about having an investigator try to "friend" your target so you can get access to the information that is not available to public searches?   If you are concerned about the ethics of this type of searching, you good instincts. 

Lawyers fishing on Facebook would be well advised to read through a few ethical opinions on the issue. Recently, the New York Bar Association issued an opinion related to ethical concerns for lawyers "fishing" for information and evidence on Facebook and LinkedIn.  The verdict?  Relying in part on a 2009 Pennsylvania Bar Association opinion, it was deemed ethical for lawyers to search for this information from public pages.  Seeking to "friend" for improper purposes, however, is more problematic and may land a lawyer in ethical trouble.  Specifically, if deception was used (by either the lawyer or a third party directed by the lawyer) to gain access as a "friend," it likely would violate the rules of professional conduct. 

Clearly, LinkedIn and Facebook are treasure troves for litigation attorneys.  However, it is a good idea to be cautious about how you access any information from these sites, especially if the information is not generally available from public searches. 

Disturbing Rise in Internet Harassment and Cyber Bullying Part Of Growing Trend

The tragic suicide of Rutgers University student, Tyler Clementi, shows the potential devastating impacts arising from misuse of the Internet and social media sites such as YouTube, Facebook, and Twitter.  This incident also serves as a reminder of the rapid sea change that technology brings and how our laws struggle to keep pace especially when it comes to new forms of media and the Internet.  I have seen two trends develop as it relates to lawsuits and social networking litigation. Both of these trends will continue. 

The first trend concerns the potential problems and risks to business owners over social media.  These issue have been well documented for over a year now.  Some of these issues include privacy rights, defamation, trade secrets, non-competition agreements, electronic monitoring, evidentiary use, and concerns over social media policies in the workplace. 

The second trend that has developed is the unfortunate increase and rise in cyber bullying, harassment, and invasion of privacy from users posting content on Blogs, Facebook, MySpace, Twitter, and YouTube.  The sad fact is that this often involves school age children as victims of cyber attacks or as users who do not fully understand the significance and devastation that might result from posting content online to the entire world.

As another glaring example, Anderson Cooper of CNN reported just last night on the disturbing story of Chris Armstrong, an openly gay student at the University of Michigan.  The story detailed how a Michigan Assistant Attorney General, Andrew Shrivell, was outright harassing and stalking Mr. Armstrong both in person and on a blog.   Mr. Shrivell’s conduct was revolting and disturbing for anyone let alone a law enforcement official.   His actions are an example of someone running wild on the Internet with harassment.

Individuals facing harassment or bullying over the Internet often feel as if there is nothing that can be done to stop the conduct.  For example, as of last night, the Michigan Attorney General had done nothing to discipline Shrivell for his conduct based on purported concerns for "First Amendment" rights.  Although the available laws for bringing a lawsuit for improper use of the Internet continue to evolve, an attorney can help a victim of Internet or online harassment.  In short, something can be done.  Some of the legal theories available for a civil lawsuit include defamation, negligent misrepresentation, invasion of privacy, stalking statutes, and infliction of emotional distress.  

The explosive growth of use of social media is not going to end. Instead, these trends will continue to dominate and grow.   As use and misuse of social media and the Internet continues, litigation attorneys would be well served to stay on top of the evolving legal issues.  Businesses and individuals will continue to need legal representation  to address these growing trends.