Category: Other Social Media

Live-Tweeting Trials Not “Broadcast.” In early May, at the ABA Litigation Section Annual Meeting, I spoke on a panel relating to social media use in trial. Two of my co-panelists were Judge William Alsup – who has presided over several high-profile technology cases in the Northern District of California – and Sarah Jeong, a lawyer/journalist who has pithily live-tweeted several of these cases. I was really struck by Alsup’s commitment to openness in the proceedings, and his sense that Jeong’s live-tweeting added something substantive to public understanding of his cases. This is certainly not the case everywhere, as many courts don’t even permit mobile devices in the courtroom, and others prohibit video or audio coverage. But in a sign of at least some movement on the transparency front, the Indiana Judicial Ethics Commission recently concluded that live-tweeting does not run afoul of that state’s prohibition on “broadcasting” court proceedings.

Failure to Communicate, Facebook Edition. A Nebraska lawyer was just suspended for failing to adequately respond to a client’s Facebook Messenger inquiries. But as Vermont Ethics Counsel Michael Kennedy notes, there’s nothing special to see here – this is simply a failure to communicate with a client; the medium used just happened to be “social.” And that’s the thing: as clients increasingly use social media to communicate – and anyone with teenage children knows that the idea of using a phone to actually TALK will be met with blank stares – attorneys have to respond and adapt to these changing habits. Social media may feel informal or frivolous, but a client’s concerns are no less real simply because they were communicated via instant message. And the attorney here still could have responded with a call, a letter, or an email – rather than just tapping back “Relax.”

Florida LRS Rule Changes Rejected. Florida is home to the nation’s most restrictive and extensive set of lawyer advertising regulations. For the last several years, the Florida Bar has been attempting to update those rules – specifically the rules relating to lawyer referral services – to deal with problems stemming from services cross-referring clients for unnecessary medical care. Unfortunately, the approach the Bar came up with didn’t address this problem at all. Instead, it attempted to water down the LRS rules and have them apply to all forms of legal marketing – including Avvo. So I went to Tallahassee last month to let the Florida Supreme Court know why we think this proposal is bad for Florida consumers and lawyers (I’m up at the 23:00 mark). I’m happy to report that the Court agreed that the Bar is on the wrong track, and sent it back to the drawing board. This doesn’t mean Florida won’t ultimately change its rules, but hopefully it will do so in a way that thoughtfully considers both the issues and the opportunities raised by developments in legal marketing and services.

Social Media News and Notes:

The “internet of things” lets manufacturers retaliate directly against negative reviews (note: NOT a good idea).

Lawyer’s defamation lawsuit over “worst ever” review is tossed by court.

Texas judge is reprimanded after letting his inner racist fly on Facebook.

On “Giving Freely” in Social Media. Kevin O’Keefe recently wrote a great blog post on the importance of lawyers being willing to “give” – without expectation of return – when using social media. You should read the whole thing, but the central point is key to prosperity in all relationships, whether on social media or in the real world (or in the increasingly prevalent intersection of the two): it all starts with sharing and real engagement. This can be hard for lawyers; we are skeptical, cautious, risk-adverse. We can have a hard time wrapping our heads around the concept of opening our arms and freely giving advice, information, encouragement, or guidance. But Kevin’s post is echoed in another recent take, from the brilliant Farnham Street blog, on the differences between “rich” and “poor” mindsets: while the latter always seeks the easy way out, the former knows that all success comes from enriching the lives of other people and going the extra mile. Getting hyped up on traffic numbers or constantly selling yourself is just a distraction from the work that drives real value – giving of yourself.

Is Using Facebook a Fundamental Right? In a sign of the pervasiveness of social media, the Supreme Court is poised to decide whether the state (in this case, under the ambit of restrictions on sex offenders) may prohibit access to social media platforms. The case raises broad questions about access to information and news, particularly in an environment where so much news dissemination comes via social media. With both the press and political leaders regularly taking to Twitter to spread news and express opinions, is it proper for government to limit access to such media? Look for the court’s answer later this summer. However, even if the Supreme Court finds such a right, don’t expect it to extend to the courtroom. Judges have wide discretion to control their spaces. As one commenter noted, constitutional rights are “at their nadir” in the courtroom. Or, as one witness recently learned the hard way, if a judge doesn’t want you to broadcast your buddy’s murder trial using Facebook Live, he probably means it.

Settlement in “Fake Defendant” Libel Lawsuit. I’ve written here a number of times before about what seems to be a growing practice of fraud on the courts designed to remove negative online reviews: file a defamation lawsuit, show up with the “defendant,” stipulated judgment in hand, and then take the judgment to Google and have the offending review “de-indexed” so it will never show in search results. Paul Alan Levy of Public Citizen has been leading the charge against this practice, and he’s obtained first blood: a settlement, along with the referral of the case to law enforcement. For lawyers who outsource their marketing, this case is yet another call for expanded due diligence, as the defendant here was a “reputation management” company. There are no doubt other such companies also doing this. And while it would be bad for any business to be found to have used a third party to try and defraud the courts, just imagine how career-impacting it would be for an attorney to be caught up in such matters.

Briefly:

Who says blogging doesn’t pay? Prolific tax law blogger named dean of Pepperdine law school.

Groupon’s legal team has created a scorecard – with client reviews – for outside law firms.

The Nevada Supreme Court will have to decide a fight between the State Bar and AG’s office over attorney licensing.

Suing over reviews a “horrible” idea:Yes, getting a negative online client review is no fun. But no, responding by filing a lawsuit is almost never the answer. You’re probably not going to get justice, and you’re certainly going to bring more attention to the claims that you’re so perturbed about. And if you haven’t asked someone who knows a thing or two about defamation to evaluate whether you have a case, you’re also going to look like a thin-skinned jerk for your trouble. Our latest entrant? New York lawyer Donald J. Tobias, who is trying to sue a reviewer who said this about their experience with him: “It was horrible.” Those words may sting, but they aren’t defamatory. And all Tobias is going to get for his trouble is greatly enhanced awareness of the fact that someone called working with him “horrible”: The Wall Street Journal, the Washington Post, and many legal blogs have all highlighted his sensitivity and lack of awareness of defamation law.

Google suspends defamation removals Despite what I’ve written above, there ARE cases where bringing a defamation action over an online review is appropriate. In such cases, a prevailing plaintiff can often take the judgment to the review site, which will respond by removing the review. What’s more, even if the site won’t remove the review, Google will typically “de-index” a review that’s been found by a court to be defamatory, meaning it won’t show up in search results. However, Google has now apparently suspended this practice . It’s unclear why, but it may well have to do with something I’ve written about previously: the filing of defamation cases against bogus defendants — who quickly “settle” — in order to get judgments that can be taken to forum sites and Google. As Google’s action shows, this sort of abuse makes it harder for those with legitimate judgments to get relief.

Law as Sorcery?:  Looking for something different in their legal marketing than the oh-so-tired gavels, stacks of law books, or steely-eyed eagles, a Florida traffic ticket law firm decided to go with the name “Ticket Wizards,” and the tagline “Results So Good, You’ll Think It’s Magic!” Unfortunately, the Florida Bar decided that this was — if not quite a guarantee of supernatural intervention — at least an impermissible prediction of success . Fortunately, the Bar let the firm keep its name and use of magical imagery in advertising, so the Ticket Wizards can keep trying to cast their enchantments on behalf of Florida’s wayward drivers.

Briefly:

Is Social Media a Detriment to Your Career?  Proving that “trolling” can happen even in the staid world of the daily papers, Georgetown professor Cal Newport – who proudly proclaims that he has “never had a social media account” – has penned a piece in the New York Times arguing that professionals should quit social media because it can hurt their careers. That’s an awful lot like a teetotaler saying that drinking booze is dangerous: undeniably true, but also wholly lacking any perspective on the potentially positive aspects of the subject. For that, read the reaction to Newport’s piece from Kevin O’Keefe – who knows a thing or two about both the risks and the benefits of professional use of social media.

Law Firm Gets Bench-Slapped Over Review Suit.  As I am constantly telling attorneys, filing a lawsuit over a negative review is almost always the worst thing you can do. Even if you’re correct, and the reviewer has defamed you, it’s rarely worth it. Defendants can be hard to find, they’re likely to be judgment-proof even if you do find them, and the Streisand Effect dictates that the mere fact of your lawsuit will bring more attention to the negative review than it ever would have gotten on its own. So . . . suffice it to say that suing when you don’t have a legitimate claim, and doing so in a state like Texas, that provides robust anti-SLAPP protection for expression, is a uniquely moronic move. Just ask the Tuan A. Khuu law firm, which filed a suit like that, and now finds itself on the wrong side of a $27K judgment for the defendant’s legal fees – and a heap of bad publicity.

“Consumer Review Freedom Act” soon to be enacted. And speaking of negative reviews . . . one clever way that some businesses (and even attorneys) have tried to avoid such things is by adding a “gag order” into their terms of use or fee agreements. This provision purports to bar the client from writing anything negative online. Such terms sometimes carry liquidated damages, and sophisticated forms will prospectively transfer copyright in such reviews to the business owner, enabling the self-help recourse of a DMCA take-down notice. It should go without saying that such terms are, as Jackie Chiles would put it, “outrageous, egregious, preposterous.” And fortunately, Congress agrees. Both houses have now passed the Consumer Review Freedom Act. Once signed by the president, this law will prevent gag orders in consumer contracts nationwide, and lawyers can focus on providing great service rather than trying to censor their clients.

News and Notes:

South Carolina judge suspended for “improper facebooking.”

Jody Arias lawyer disbarred for tell-all book

Pants-less in chambers? Judge sues for defamation over claim.

One of the wonders of the web is the sheer amount of information, on virtually any imaginable topic, available at one’s fingertips.

And one of the horrors of the web is the same thing. Anyone with a keyboard can spew whatever awfulness they feel compelled to share.

Companies that provide forums for user-generated online content have to strike a balance between these two sides of the internet, a task the difficulty of which is vastly underestimated.

Take Avvo, for example. Our site is narrowly focused on American lawyers and legal issues. We can moderate out all sorts of things simply on the basis of relevancy. Political screeds in the form of a question in our Q&A forum? Out. Marketing drivel as a legal guide? It’s gone. Off topic rants about someone else’s attorney in our review system? Those won’t even see the light of day.

And yet, even with Avvo’s narrow focus and relatively modest size, the effort necessary to moderate content on our site is a massive job. It involves a number of people working on this task full-time, and regular escalation of issues to all levels and departments of the company. And we’re still not ever going to make everyone happy.

So imagine what the content moderation job is like for Facebook, operating globally, with billions of users, in an environment where ALL topics are relevant to someone.  This Guardian article detailing some of Facebook’s struggles to strike the right balance mocks the company for using this form language when reversing content moderation decisions:

“The post was removed in error and restored as soon as we were able to investigate. Our team processes millions of reports each week, and we sometimes get things wrong. We’re very sorry about this mistake.”

Well, of course Facebook uses the same word-for-word apology. They are likely making hundreds – if not thousands – of the same “errors” every week. Content moderation is hard, and given Facebook’s scale it’s surely not difficult to find the sorts of ridiculous examples highlighted in the Guardian piece.

The potential for such errors can be self-inflicted as well. As this earlier piece from the Wall Street Journal notes, Facebook has had to deal with internal pressure to remove some of Donald Trump’s messages as “hate speech.” A global company like Facebook must navigate the norms its own employees bring to the table, particularly those in countries that don’t share America’s appetite for free speech. Although Facebook has resolved to consider the newsworthiness of items facing removal complaints, both Facebook and Twitter have faced complaints about putting a thumb on the scale in favor of progressive messaging and causes.

That’s always going to be a risk where humans are involved. We’re going to bring our biases and preconceptions to the table when trying to decide what is and is not worthy of being published. All the forum sites can do is try to be as balanced and fair as possible. But before getting all apoplectic about every example of content moderation gone bad, consider first the sheer scale and difficulty of the problem.

Just over a month ago, I wrote about the fight Avvo has found itself in over defending online anonymity.

The decision is now in, and we’ve prevailed – the Court of Appeals affirmed the trial court decision allowing Avvo to resist the subpoena seeking to unmask its anonymous commenter. And in so doing, the court articulated a test for unmasking anonymity in Washington state – a test that strikes the right balance between allowing discovery to proceed in legitimate cases of defamation and preserving anonymity.

For plaintiffs who have a legitimate case – and some evidence to back it up – the court’s new test doesn’t pose much of an obstacle. Show why you’ve got a case, and why you need to unmask the anonymous speakers, and discovery can move forward.

But for those people who file reflexively, who think “defamation” means “someone wrote something about me I don’t like,” who use baseless litigation as a means to expose and threaten those who speak against them? They can no longer rely the standard rules of expansive discovery to expose anonymous speakers.

From where I sit, that’s a very good thing.

N.B.: For more on the legal issues involved, check out this blog post from Public Citizen’s Paul Alan Levy (Paul represented the Doe defendant).