by eclewis | Mar 7, 2010 | Business News, Online/Social Media Law, Random Thoughts
I am preparing a presentation on online marketing law for small businesses. Something I see more and more, is when I meet someone at an event, next thing I know I have an email saying I have been added to his or her email newsletter list (or just start receiving the thing). I may be behind the times, but before I send anyone my newsletter, I ask for permission – whether it is in person at an event (which is rare) or after getting to know them. Now, I am not talking about people I do business with – I totally expect to get an email here and there from my accountant, or my doctor, or the business center I use. In fact, I like to know that the tax rules have changed or that the business center is offering a class. But, the email from them is part of the service I am paying for.
What I am talking about is the people I meet for two minutes at an event, give them a business card, and bam, I am on the list. Whether I want the information or not, I have another email I either need to delete or unsubscribe to.
So my questions of the day are: What do you think when you meet someone at an event and next thing you know, you are added to their email list without explicit permission? Do you like getting the information or does it just annoy you? Are you like me, where you typically don’t mind getting the email, you just want to be asked first? Does getting an email without permission do the same thing to you that it does to me – make you less likely to do business with that person?
Please feel free to post comments here or at my facebook fanpage located at www.facebook.com/legalsolutions!
I’d love to know your thoughts as I prepare my presentation!
by eclewis | Feb 24, 2010 | Business News, IP Law, Online/Social Media Law
I was recently asked by Mike Hanbery of Hanbery Marketing whether there are any laws out there that prohibit an employer from using information that was posted on a social networking site. The following is a repost of my thoughts on the question that can be found here.
Let me start off with the normal legal language that I have to get out of the way – this information is provided by the Law Office of E.C. Lewis, P.C. for general informational purposes only and not for the purpose of providing legal advice or giving a legal opinion on any specific facts or circumstances. Now that that is out of the way, here is my take on the question.
As far as I know, there are no laws that specifically deal with the use of information gained by employers through the use of social media sites. However, this doesn’t mean there aren’t any laws dealing with what can be done with information gained from social media sites. Social media is just another way of doing what we have always done – learning more about people that we want to hire, do business with, or are friends with. Twenty years ago, an employer had to research a person to find out whether he wanted to hire her just like he does today. The difference is there are just more ways to do that now. Rather than asking just for personal references and learning what you can from former employers, a potential employer can also see what you have done through your own actions on Facebook or Twitter. And, just like with personal references twenty years ago, these actions may give an employer cause not to hire you.
The laws that govern what can be done with information learned offline also apply to information learned online. Someone cannot discriminate against you in most cases because of sex, race, national origin, religion, age, or disabilities (I say most because there are jobs where you can, but those are very rare). In addition, there may be other specific laws protecting you from other types of discrimination (i.e. sexual preference or marital status) depending on the state you are in. So, for instance, an employer cannot go to Facebook, see your online picture and not hire you because you are a women (unless the job requires that you be a man). She can also not go to Facebook and not hire you because you list Judaism as your religion (unless the job requires that you be a specific religion). However, this isn’t any different than it would be without social media. Twenty years ago, an employer couldn’t interview you and then not offer you the job because at the interview she learned you were a woman and not a man. The biggest difference now is that an employer can learn a lot about you that would have been difficult 20 years ago. Twenty years ago, it would have been more difficult, in many cases, to figure out your religion, your sexual preference, and in some cases your age. Now you can do that with a click of a mouse. But, either way, whether someone finds out the information online or offline, discrimination, for certain categories, is still illegal. (Of course proving discrimination is a whole other blog post.)
The area that social media affects the most is when someone finds out information about you that can hurt your job search for which you have no legal recourse. As far as I know, and I would be very surprised to find a law like this ever being passed, there are no laws that say an employer can’t discriminate because they don’t want an employee who drinks every night (unless somehow an ADA claim was made), they don’t want an employee who has three dogs, or they don’t want an employee who use to have a Mohawk. The difference with this today verses 20 years ago, is someone would typically find this out after employing you rather than beforehand. Twenty years ago, you’d already proven yourself to be a great employee after three months of employment so by that point, your employer didn’t care if you had a Mohawk 10 years before you were hired.
Because of this, I tell my friends and family who are searching for a job the same rules that I live by as a business owner (as potential clients are doing the same thing to me as employers do with potential employees), don’t put anything online that can hurt your reputation. (Also known as the “If you would be embarrassed if your mother saw it, don’t post it on Facebook” rule.) But even if you aren’t hired because of something on your Facebook site, think about the realities of why. If someone doesn’t hire you because you have three dogs, do you really want to work for this person anyway? If a company doesn’t like you because 10 years ago you were in a rock band, do you really need to spend 40+ hours a week there? However, this doesn’t mean post anything you want. There is a big difference between not getting a job you would probably not like anyway because you have three dogs and not getting one you would love because you posted 200 topless spring break drunken photos.
Although most of my posts throughout the rest of my blog deal with the employer side of things (as I usually represent businesses), for anyone interested in the interplay of the two, please feel free to browse the rest of my blog.
by eclewis | Jan 20, 2010 | IP Law, Online/Social Media Law
Although this article is geared towards attorneys in Colorado, several non-attorneys who have read it actually found it interesting. Most people don’t realize that attorneys have rules that we must follow when we advertise – whether online, through print, or over the mail. Although this doesn’t go over very many areas, for anyone interested in social media, I figured I would post it. In addition, even if you aren’t an attorney, it just shows that your industry may be regulated too and you should always contact an attorney to ensure that you aren’t violating any laws when you Facebook, blog, and tweet away!
Recent Opinions on the Ethics of the Use of Social Media by Attorneys
Over the past few months, the buzz about social media has been hard to miss. Following the Haitian earthquake, CNN reported family members were connecting via Facebook and Twitter. Celebrities such as Ashton Kutcher, who led a campaign to get over 1,000,000 followers on Twitter, use it to connect with fans. Even the Denver Bar Association has a Fanpage on Facebook to disseminate information to its members.
Just as individuals, celebrities, and businesses are using it to connect with friends, fans, and clients, attorneys are also starting to use it for professional and social development. However, as their use increases, so do the questions about how to ensure that use complies with the Rules of Professional Conduct. Several states have issued opinions with varying degrees of admonition to the attorneys and judges who have used sites like Avvo, Facebook, and LinkedIn incorrectly in the eyes of the regulating bodies.
Two recently published Ethics Advisory Opinions regarding the use of social media by attorneys have come from Florida and South Carolina. The first was the Florida Judicial Ethics Advisory Committee Opinion 2009-20 issued November 17, 2009. In this opinion, Florida answered the question whether a judge may “friend” an attorney who may appear in his court on a social networking site such as Facebook. Florida determined that by being a “friend” of a judge on Facebook, the appearance was that the “friend” might be in a position to influence the judge. Fearing the appearance of impropriety by the general public, Florida determined that if a site required the approval of a person as a “friend” by a judge, such as Facebook, that the judge may not accept the request from anyone who may appear in his courtroom. This opinion did state, however, that if no action was required by a judge then this was not unethical (for instance, some elected judges create “Fanpages” on Facebook for political supporters and cannot control who does or does not become a fan). It is worth noting that there was a minority that stated that the term “friend” online did not mean someone was in a position to influence a judge but rather just a social acquaintance and that they did not agree with the full opinion.
The second opinion affecting online social networking is South Carolina’s Ethics Advisory Opinion 09-10 issued last fall. In this opinion, South Carolina answered questions about the use of websites that list and allow reviews of attorneys. Specifically, the site in question allowed an attorney to “claim” his profile and ask for recommendations from other attorneys and clients (with most people believing that the website in question was avvo.com although not specifically mentioned). However, the site did not allow attorneys, even those who claim their profiles, to control who recommended them or what was said in these recommendations, much like the websites Avvo.com and Linkedin.com and, perhaps the better know, Martindale-Hubbell and SuperLawyers. Reviewers could also post recommendations, or complaints, about an attorney anonymously without any control by the attorney. As any information posted on a “claimed” website was determined to be an advertisement, whether written or controlled by the attorney or not, South Carolina stated that it must conform to their Rule 7.1 and 7.2. Further, South Carolina even stated that if a someone wrote an endorsement of an attorney, it was the attorney’s responsibility to “counsel the client to conform the advertisement to the Rules of Professional Conduct and that, if the client refused, the lawyer’s continued representation of the client may imply the lawyer’s authorization or adoption of the advertisement” violating the Rules.
Much discussion has come from these opinions both online and offline with attorneys that use social media. In an ABA Journal article, one attorney was baffled that in the eyes of South Carolina’s ethical panel, he was responsible for not only what he said but also what non-clients said on a website (as one cannot determine whether it is really a client who posted a recommendation or not). Should the opinion be expanded, it could be the death sentence for attorneys using sites such as LinkedIn to help grow their employment opportunities. Regarding the Florida opinion, should other jurisdictions follow suit, the outcome could be devastating for both the professional and social development of attorneys and judges. For instance, a longtime law firm colleague may find she has to “unfriend” her prior colleagues once she takes on judicial robes if those former colleagues may appear in her court.
Although Colorado has not specifically regulated attorneys use of social media networks, attorneys who use social media for both professional and client development must be aware of the developments in other jurisdictions and the interplay of our Colorado Rules of Professional Ethics on the use of social media networks. This article only mentioned two of the many issues that have arisen in the past few years. For instance, it doesn’t even touch on: whether if you list practice areas under the “specialty” section of your LinkedIn profile you violate Rule 7.4 (many say yes if you don’t have a disclaimer), whether if researching an opposing party online could create issues if the lawyer misleads someone about his identity under Rule 4.1 (most say yes if you lie about who you are), or whether if saying you are having lunch with a perspective client on Twitter can be seen as breaching client confidentiality under Rule 1.6 (again, probably yes). As the role of social media and online marketing expands, whether Colorado will begin to create new regulations, or apply the regulations we already have to the emerging media, remains to be seen. However, the opinions issued in both Florida and South Carolina serve as a word of caution to all attorneys who use social media to review their profiles, postings, and other content to ensure that it is in line with the Colorado Rules of Professional Conduct and the rules of any other jurisdictions in which they are licensed.
by eclewis | Jan 16, 2010 | IP Law, Online/Social Media Law
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by eclewis | Nov 22, 2009 | IP Law, Online/Social Media Law
Thursday night, I was fortunate to be on a panel for the Mile High Social Media Club with local photographer Jerome Shaw and attorney Kristin Diamond. I had a great experience and the group, as always, was a great crowd. (I have been going to the MHSMC meetings for sometime now and the quality of individuals that attends is always a pleasure!).
Several of the issues raised I discussed on my blog about in the past few posts. However, several questions were asked that I have not posted about (or at least haven’t recently posted about) and a short discussion of them is in order.
The first question that was raised was about creating contests and other promotional events using the web. While it is important that anyone creating contests have a clear terms of entry that covers what rights the contest holder gets to the entries, when a third party is going to be used to host the material, the terms of use of the third party must also be clearly understood. With the advent of websites like Flickr, YouTube, and Facebook, more parties are using these mediums to host their contests and promotional events. However, by using these sites, the parties are not only agreeing to the terms of use of these sites for themselves, but potentially the contest entrants to. Therefore, when developing both the contest and the terms of service, it is important to make sure that the attorney developing the terms of services has been told that a third party is also going to be used.
The second question that was raised was about how to ensure that small companies have the correct procedure in place to stop information from being released by employees. Although I dealt with this in an earlier post, I thought revisiting this issue was a good idea. First, having an attorney help develop a communications policy doesn’t have to be expensive. Attorneys experienced in online and internet issues can integrate these policies into employment contracts and independent contractor agreements – both of which are probably documents that small companies should have created anyway (of course, small companies need to consult their attorneys to be sure that these documents are necessary). Attorneys experienced in this can also help companies draft policies and instruct management how to make sure the policies are followed. Although this may not be super cheap, it is a lot cheaper than having the company brand hurt by an unintentional post by an employee.
Again, I loved presenting to the MHSMC and thought the questions asked were great.
For the rest of the week, please look forward to a post on judges banning twitter in the courtroom and the Digital Economy bill pending in England.
by eclewis | Nov 16, 2009 | IP Law, Online/Social Media Law
What policies and procedures should you have to protect your IP? To answer this question depends on who “you” are. This post goes over two very general types of situations – large companies and small 1-2 person shops. As always, you should consult your attorney to see what specific polices you need.
The Large Company
The large company faces multiple issues – such as dealing with agencies like the SEC, developing employee policies, and following truth in advertising rules. Large companies, especially those that are either publicly traded or thinking about going public, need to worry about publishing information that goes afoul of SEC rules. For instance, having an employee that publishes information regarding profit forecasts on twitter, even if unauthorized, may cause issues for the company. Because of this, large companies also have to worry about what their employees say, both in and out of work. Therefore, it is important to have a written policy on social media and other communications in general.
Although these issues may also be faced by medium sized companies, the large business may have a more difficult time dealing with this issues. One reason is monitoring 20 employees and communicating policies such as what can and cannot be posted on social media sites, and monitoring that employees are following it, is easier than monitoring and communicating policies to 500 employees.
Because of this, large companies need a written employee communication policy that covers both what can be said verbally and electronically. These policies should incorporate social media policies and address and special circumstances (i.e. if there are additional rules imposed by HIPAA or other laws that may apply). Large companies should also have either an in-house counsel or outside counsel that is familiar with SEC and FTC compliance issues to make sure both employees and upper management (i.e. board members) are counseled on what can and cannot be said regarding the company.
The Small Company
Small companies can usually internally ensure that employees, especially if there are only one or two employees, follow the policies that the owner wants. Small companies are also, typically, less concerned with releasing information that may violated the SEC rules (unless of course, small companies are looking to sell shares then it may be an issue). Because of this, depending on the number of employees, small companies may have an informal policy, unlike large companies that need written formalized policies, that is crafted with the help of an attorney to ensure that employees know what they can and cannot talk about (and the owners know too).
However, as small companies typically do not have in-house consul, small companies may have more problems ensuring that they follow advertising rules. Therefore, they need to make sure they have been counseled on what is, and isn’t, deceptive advertising. Depending on the company’s line of business, there may also rules and regulations that the company needs to follow (i.e. insurance, accounting, health, etc). By knowing the rules that govern the type of industry the company is in, a company can help make sure it is compliance with the rules.
If you find that the above post interests you, I invite you to come and listen to the Mile High Social Media Club presentation Thursday, November 19th at Strings in Denver at which myself and two other individuals will be on a panel discussing these types of issues. You can RSVP for the event at http://novembermhsmc.eventbrite.com.
