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Social Media Law

Social Media Law. John D. Gregory Ministry of the Attorney General (Ontario) October 29, 2012. Overview. Introduction Communications Security Employment Evidence Government Personal Conclusion. Introduction. Definition A plea from my high-school Latin teacher Media: neuter p lural

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Social Media Law

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  1. Social Media Law John D. Gregory Ministry of the Attorney General (Ontario) October 29, 2012

  2. Overview • Introduction • Communications • Security • Employment • Evidence • Government • Personal • Conclusion John D. Gregory Social Media Law

  3. Introduction • Definition • A plea from my high-school Latin teacher • Media: neuter plural • Extremely varied in operation, impact • Free • Diverse users • Interactive (web 2.0) • Much user-generated content • Characteristics • ‘Public intimacy’, immediacy, collaboration • Maybe anonymity • Enforcement of legal rights can be hard or hazardous John D. Gregory Social Media Law

  4. Communications • The usual rules apply • Defamation • Intellectual property • EU Court: move from ‘substantial copy’ test • Harassment • Privacy • Misrepresentation – civil and criminal (fraud) • Cyber-bullying may be next (if not already barred) • Liability of intermediaries is not resolved • Interaction of providers and law enforcement John D. Gregory Social Media Law

  5. Security • Social media are in the cloud • So risks are similar to discussion that follows • Open to the world – decentralized and mobile • A lot of celebrities have been hacked (8/10 of ‘most followed’ on Twitter) or impersonated • A lot of people have very weak security • Social media sites may not offer much security • Lend themselves to social engineering attacks • Impact of BYOD (bring your own device) policies John D. Gregory Social Media Law

  6. Employment • Who owns rights? • Who owns Twitter followers? LinkedIn profile? • Right to monitor employees: • Manage expectations • General use of social media in recruiting • Disclosure of passwords (BAD idea) • Solicitor-client privilege in employer systems • Employee use of personal sites • Free speech vs ‘loyalty’; watch who you friend • dismissal, actions for poisoned work environment • Regulatory issues for employers e.g. illegal disclosures John D. Gregory Social Media Law

  7. Evidence • Issues of proof in general = other electronic evidence • Evolving, authentication likely to get more complex • Whose content is subject to e-discovery? • How closely linked to employer etc • Admissibility • Facebook discovery cases (s.m. often red herring) • Wikipedia cases (watch the history, discussion) • Use of social media in the courtroom • Notably by jurors for comment, for research John D. Gregory Social Media Law

  8. Government • Ontario Deputy Ministers instructed to ‘engage’ with Twitter • Mainly a ‘push’ use – links to existing or new content • Need for bilingual tweets • Limits to interactivity (four levels of approval) • Some potential for interaction with known stakeholders • Authentication of those we hear from? • No legal advice (and limited ability to disclaim) • Appropriateness of private communication via social channels • Reluctance re personal exposure of public servants • Concerns about comments on publications (e.g. blogs) • TOU of social media sites: indemnities and immunities problematic John D. Gregory Social Media Law

  9. Personal • Digital assets on death • Many social media close out account and delete contents on death • Ability of executor to access data (of value) limited by terms of use, practicalities • Use of ‘lost password’ function if basic access OK • Secret content – online as off • Private services like Legacy Locker (but effective?) • Legislation in US – states and uniform John D. Gregory Social Media Law

  10. Conclusions • Everything old is new again • Mix of personal and professional creates risks (and the fun) • Social does not mean to be taken casually • User-generated content is large source of risk • Privacy issues are important and unresolved • Marketing rules (e.g. lawyer advertising) are relevant • Businesses (and law firms) need a careful comprehensive plan for company and employee uses John D. Gregory Social Media Law

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