Social Media Law in a Nutshell
Authors:
Garcia, Ryan / Hoffmeister, Thaddeus A.
Edition:
2nd
Copyright Date:
2022
16 chapters
have results for social media
Chapter 1. Why Social Media Law Matters 54 results (showing 5 best matches)
- In order to discuss social media we must first define it. Many believe that social media is limited to the large social platforms: Facebook, Twitter, LinkedIn, and the like. The truth is that social media is far larger. These sites are social networking platforms and merely one part of social media.
- Social media is deeply personal. Because social media is built around conversations, the first thing a typical social media user will do after setting up their account is to connect with their friends and family. In many cases, an offline request from a friend or family member is what brought a new user onto a social media platform in the first place. Once connected, the new social media user will consume content written by their friends, shared by their family members, or recommended by both. Social media is the ultimate dinner party and you don’t even have to do dishes.
- Social media law is less a discrete set of rules and cases that apply to social media but more about how the social media revolution has impacted the entire legal field. Every substantive area of law has been impacted by the rise of social media: electronic evidence, employment, free speech, marketing, and beyond.
- Social media’s informal tone causes users to treat social media informally and behave a particular way on most platforms. This can directly impact individuals’ use of social media on the job whether intentionally or not by exposing individuals and their employers to increased social media risk. The very element that causes people to come back and engage in social media can also turn its head and bite them with negative repercussions.
- Social networking is a huge part of social media, but it is still just one part. Social media is any technology that allows online conversations. This includes Facebook and Twitter but it also includes blogs, wikis, chat rooms, YouTube comments, and more. If you have visited a web page with a comments section, you have been on a social media community. If you have visited a community-run site where fans of a TV show collaborate to document every facet of their beloved televised world then you have visited a social media site. Similarly, if you browse a web page where a group of people are trying to raise funds to start a new business, interacting with their backers while trying to raise money, then you have spent time on a social media group. These are all examples of sites and pages that fall outside social networking but are certainly part of social media.
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Chapter 10. Litigation 62 results (showing 5 best matches)
- As written, the SCA prevents defense counsel or civil practitioners from obtaining content information from a social media provider concerning a user’s social media account absent permission from that user. This is true regardless of whether that information is subpoenaed directly from the social media provider. In certain limited situations, a social media provider may provide prosecutors and law enforcement content from an individual’s social media account. To understand when this might occur, it is first necessary to classify the provider as either a RCS or an ECS.
- This chapter will explore social media’s impact on litigation. First, the chapter begins by examining how an individual’s social media activities can result in the court obtaining personal jurisdiction over him or her. Next, the chapter explores the use of social media as a method of providing parties notice of upcoming legal matters e.g., service of process. Third, the chapter looks at social media as a discovery tool. Here, the book delves into the challenges of obtaining information from social media providers by discussing the Stored Communications Act (SCA). The last section provides a brief examination of the rules of evidence. The focus here is on the issues that arise when attorneys attempt to authenticate social media related information.
- At present, using social media to provide parties notice of pending legal matters has been more widely accepted outside of the United States than inside. For example, countries like Australia and the United Kingdom permit service of process via social media. Australia first allowed the practice in 2008 and the UK in 2012. While some American jurisdictions have become more willing to accept service of process via social media, others have not. At present, few American jurisdictions allow social media to serve as the primary method of service. Rather, service by social media, when allowed, serves as a supplemental or secondary form of service.
- In comparing social media to traditional forms of alternative notice like publication, social media appears to be a better tool if the ultimate objective is to make someone aware of a pending legal proceeding. Over the past twenty years, newspapers have faced a steady decline in readership, while social media has seen steady growth in its users. Of those who regularly read newspapers, few, if any, take the time to examine the legal announcements which are rarely, if ever, prominently displayed. In contrast, individuals routinely check their social media accounts and email. Furthermore, notice by publication presumes that the individual making the publication knows the physical whereabouts of the other party, which is not always the case. With social media, the physical location of the other party is irrelevant.
- As a result of the vast amount of information available on social media, litigators, both civil and criminal, have made investigating social media an integral part of pre-trial preparation. In fact, some have gone so far as to say that failure to investigate social media is tantamount to malpractice. While this may sound somewhat hyperbolic, jurisdictions across the country increasingly require attorneys to be aware of and familiar with common social media platforms.
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Chapter 7. Privacy 39 results (showing 5 best matches)
- The user’s first layer of privacy protection against social media providers are federal and state laws. At present, there are no federal laws specifically dedicated to the protection of privacy rights on social media. However, there is an irregular patchwork of federal laws that safeguard specific types of personal information in any context to include social media. One such statute that was created prior to the tremendous growth in social media but has nonetheless proved successful in protecting the privacy of young social media users is the Children’s Online Privacy Protection Act (COPPA).
- Generally speaking, social media providers are free to modify their privacy policies. In doing so, the social media provider must provide the user notice and the opportunity to opt out. The one big caveat here concerns instances where the social media provider does not obtain user consent e.g., the user neither agrees to the new terms nor returns to the site. In those scenarios, it is unclear whether the social media provider can impose the new terms on old content left on the site of the social media provider.
- Section 7.02 explores the various privacy protections that work to limit how social media providers access and use information from their users. This section will start with an analysis of several statutes that protect user information from social media providers. This will be followed by a discussion of the privacy policies of social media providers. The section concludes with an examination of the major privacy litigation brought by both the Federal Trade Commission (FTC) and private individuals against social media providers for violating user privacy.
- The Online Eraser Law also imposes several notice requirements on social media providers to include notifying the minor of the right of removal. In addition, the social media provider must provide users clear instructions on the removal process. Finally, the social media provider has to alert the minor that removal “does not ensure complete or comprehensive removal of the content information.”
- As individuals place more and more information about themselves online, there is increasing concern about safeguarding user content from social media providers and outside third parties. This chapter will explore the privacy protections currently available to those who use social media. This discussion will occur in two parts.
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Chapter 9. Criminal Law and Procedure 67 results (showing 5 best matches)
- Criminal defendants use social media to not only commit crimes, but also to organize, plan, discuss, and even brag about illegal activity. Generally speaking, these social media related crimes fall into one of two categories. Category I crimes involve defendants using social media to information to others. While most social media related crimes fall into Category I, some fall into Category II which involve the defendant using social media to
- Due to a variety of factors, criminal investigations regularly occur on social media. These investigations are conducted by (1) social media providers, (2) the general public, and (3) law enforcement. At present, there is no requirement for social media providers to conduct these investigations. Furthermore, save for child pornography, social media providers have no legal duty to report any criminal conduct that they become aware of. However, many social media providers not only conduct investigations on their own sites, but also regularly report suspected criminal conduct to law enforcement.
- This chapter examines the impact of social media on criminal law and procedure. The first part of this chapter will look at criminal law. Here, the chapter will discuss the various ways in which criminal defendants use social media by examining crimes unique to social media e.g., revenge porn, online impersonation, and flash mobs. This section will also explore whether social media platforms can be held criminally liable for the actions of their users e.g., tweets by terrorists.
- The question here is whether the social media provider’s service or communications platform can be deemed “communications equipment,” which has been an undefined term to date. While no prosecutions of social media providers have occurred, despite the urging of some, the material support statute is so broadly written that it could conceivably encompass social media providers. Also, the Department of Justice has used this statute to prosecute individual users of social media and others who post terrorist content.
- Many believe that crimes involving social media are more difficult to prevent and prosecute than traditional crimes that occur entirely offline. For example, people point to the reach of social media and claim that it has made the physical proximity of the defendant to the victim less of an issue. Historically, the criminal defendant was limited in his choice of victims to those who were in close physical proximity to him. By knocking down these barriers, social media has provided the criminal defendant a much larger pool of victims. With social media, a criminal defendant can reach and interact with a victim that is thousands of miles away. Social media’s reach also allows the criminal defendant to re-victimize the victim even when that person is no longer in the defendant’s physical presence. This is because the criminal defendant can reach out and virtually “touch” the victim.
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Chapter 4. Employment 70 results (showing 5 best matches)
- Many brands and organizations find it useful to offer some form of social media training for its employees. Social media training can not only benefit employees by teaching them how to avoid social media risks, but the brand can also benefit by having a trained workforce that may utilize social media for the organization’s benefit. Social media training
- Social media is all fun and games until somebody loses a job. The social media explosion hit its first road bumps as random stories emerged of people having job offers rescinded, facing an investigation at work, or even being fired because of something they posted on social media. No other risk seems quite as real to innocent users of social media platforms then the prospect that they might face repercussions on the job.
- The risks surrounding employment and social media are a two-sided blade: employees face loss of a potential or actual job and employers must also be careful in how they use or restrict social media use by their employees. Social media risks for both employers and employees come from three different phases of the employment life cycle: getting the job, keeping the job, and losing the job.
- Looking at a job applicant’s social media profile can immediately expose the employer to several protected categories of information beyond the information that may have been readily apparent in a face-to-face interview. The first page of an applicant’s Facebook profile might contain posts that reveal the applicant’s religion, a disability, or their exact age. Employers may need to look at social media activity in judging an applicant’s social media skills but any other social media browsing is a potential minefield of legal exposure. Any employer already aware of their existing legal obligations would have designed a hiring process to avoid extraneous and protected information from entering their consideration—an additional legal requirement to avoid social media profiles was likely unnecessary.
- When social media first rose to popularity many employers attempted to block employee access to social media. While some employers continue to do so today, employers also know that employees will frequently access social media via their personal smartphones or on their home systems after work. As employers realized they could not prevent access they sought to create limitations on its use. Some of these restrictions have been too broad, some have been necessary, but all are found within the confines of an employer’s social media policies.
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Chapter 12. Judges 33 results (showing 5 best matches)
- This chapter explores the impact of social media on the judiciary. The first part of the chapter looks at ways in which judges use social media to interact with attorneys, witnesses, parties, and the general public. The second part of the chapter examines the methods by which judges regulate the use of social media inside their courtrooms. The focus here will be on jurors and the media.
- The use of social media by non-jurors in the courtroom arises in a variety of different circumstances. As discussed in Section 10.04, attorneys increasingly rely on social media to investigate jurors. Another example of social media used inside the courtroom includes real-time reporting by both new and traditional media. This generally occurs in high-profile trials that generate significant public interest.
- In addition to concerns about ethical violations, certain judge-attorney social media relationships have been grounds for recusal and retrial in both civil and criminal cases. Despite these potential problem areas, courts are increasingly more accepting of judges and attorneys interacting on social media as illustrated by the following case.
- While the Court no doubt answered the question of whether or not judges and attorneys can be “friends” on social media, it must now determine exactly what social media conduct conveys the impression of a close relationship.
- In the Digital Age, jurors increasingly use social media to either discuss or research the case even though such conduct is generally prohibited. To prevent jurors from using social media in connection with the case on which they sit judges have tried a number of remedies to include: imposing penalties on jurors, allowing jurors to ask questions, improving jury instructions, and requiring juror oaths.
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Chapter 3. Marketing and Promotions 80 results (showing 5 best matches)
- In the early years of social media platforms, marketers wanted to avail themselves of the hundreds of millions of users browsing social media sites but did not have a sophisticated way of doing so. A brand or organization could establish its own social media profile—a Twitter account, a Facebook page, an Instagram feed—but these accounts were limited to only those consumers connected to its network. Social media platforms were not created for marketers and lacked the tools necessary to design advertising campaigns and reach audiences marketers were expecting.
- In addition to the regulations that apply to all promotions, whether offline or online, there are also special considerations that must be given to sweepstakes and contests that take place on social media. These considerations extend beyond the standard terms set by government agencies and the rules established by social media platforms. Instead, these risks spring from the general risks presented by marketing on social media.
- Another risk that can be built into a promotion’s design is its utilization of a single social media platform. Many users and brands take for granted the broad availability of social media platforms. While a social media platform never intends to experience downtime, it can be an extra risk for a brand or organization relying solely on that platform for a promotion during a specific timeframe.
- While the FTC admitted that the document was intended to cover social media advertising, it also wanted to be explicit that the rules themselves had not changed, just the application into new channels. The revised Endorsement Guidelines did not call out specific rules for social media advertising, choosing instead to incorporate the new technology into existing examples. As a result, of the 36 endorsement examples provided in the revised Guidelines, only four dealt with any kind of social media: three blogging examples and one that involved an online message board. The revised guidelines did not address Facebook, Twitter, or other major social media platform endorsement activities.
- The Northern District of California held that even though CAN-SPAM defined an “electronic mail message” as a message sent to a specific email address the law was intended to cover more than email and could be applied on social media platforms. The issue of how social media messages could be compliant with the CAN-SPAM requirements remains open.
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Chapter 8. Torts 36 results (showing 5 best matches)
- This chapter highlights the various ways social media impacts the law of torts. The goal of this chapter is not to examine every possible tort that arises from social media. Instead, this chapter will focus on the areas of tort law that have been most influenced by social media.
- One major challenge with resolving defamation claims is anonymity. To date, neither social media providers nor the government has established a cost-effective method of verifying the identity of social media users. Some social media providers have a real-name user policy, which means that users must use a name supported by some form of offline identification i.e., mail, library card, driver’s license, etc. This policy is generally enforced by the social media provider after one user reports another for not using their true identity. At times this will include users who, while not anonymous, use pseudonyms.
- The first part of the chapter will look at the liability of social media providers for the actions of their users. Generally speaking, Section 230(c) of the Communications Decency Act (CDA) gives providers of an “interactive computer service,” including social media, immunity for the acts of its users. This part of the chapter also examines third party liability to include discussing whether parents can be held liable for the tortious social media acts of their children or employers for the conduct of their employees.
- Next, the chapter looks at the methods individuals and entities rely on to limit criticism that occurs on social media. With commentary on social media influencing consumer choices, businesses have grown increasingly concerned about receiving any type of negative or unfavorable online reviews. This in turn has led some businesses to take steps, some legal some not, to restrict online criticism.
- The penultimate section of the chapter discusses social media and defamation. The chapter concludes with a brief discussion of the step-by-step procedures for removing an unfavorable social media post.
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Chapter 11. Ethics 58 results (showing 5 best matches)
- The order was subsequently amended to clarify that plaintiffs’ counsel could use electronic communication to include social media to discuss the case with clients and other members of the law firm. The amended order also broadened the scope of the social media sites covered to include LinkedIn. In addition, the amended order added the personal social media accounts of plaintiffs’ counsel.
- To date, attorneys have effectively used social media to influence people both inside and outside of the courtroom. For example, when the focus is on people outside the courtroom some criminal attorneys have turned to social media as a way to tell their client’s story in order to shape and galvanize public opinion. Through social media, both prosecutors and defense attorneys are able to reach the public on their own terms without going through the media or some other third party.
- This chapter delves into the intersection of ethics and social media. The chapter begins with a brief discussion of why attorneys need to stay abreast of technological changes to include advancements in social media. Next, the chapter examines the attorney-client relationship. The focus here is on what advice attorneys can and cannot give their clients regarding social media. This section will be followed by a brief discussion of client confidentiality.
- This chapter also looks at the ethical missteps that can arise when attorneys use social media to communicate with and investigate jurors, witnesses, and parties. The chapter concludes with a discussion of the ethical problems that occur when attorneys use social media to interact with the general public. The last section explores inadvertent attorney-client relationships, attorney advertising, and attorney commentary on pending litigation.
- Attorney advice to clients regarding social media is either proactive or reactive. When done proactively, the attorney attempts to limit any potential harm that might arise from the client’s future use of social media.
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Chapter 6. Content, Copyright, License 59 results (showing 5 best matches)
- The majority of social media content consists of content, original or otherwise, that can easily be understood as speech. The question of whether engagement with social media constitutes speech can be a complicated matter. Submitting a comment on a social media post is easier to classify as speech, but the issue of whether a simple interaction, such as a Like on Facebook, could be considered speech was an open question in the early days of social media.
- Since individuals own their social media posts and the overall account which houses them, the collection of social media activity could reasonably be construed to be part of that individual’s estate at the end of their life. Just as a poet’s body of work becomes part of their estate after their death, so too could the social media accounts belonging to any individual user. Does this impose a special set of restrictions upon a social media platform to handle content differently if it belongs to a deceased user?
- The third safe harbor category is the one most social media providers attempt to utilize. It covers any service where a user can store information. Any post on a social media platform is stored on the platform’s servers making this the most relevant safe harbor category. For a social media provider to fall within this safe harbor it must:
- Social media may be defined as online conversations but the only way to have a conversation online is through the ability to interact with content. With all of the content and conversations that the social media explosion has enabled, numerous legal concerns have arisen around the creation, posting, and sharing of content. These concerns have come under the treatment of content as speech as well as the application of copyright law to social media content.
- In April, 2013, the SEC closed the investigation into the Netflix post without taking any action against Netflix. Although the SEC announced no formal rule changes, they did release a Report of the Investigation that included guidance for social media posts by publicly traded companies. That guidance suggested publicly traded companies could use social media channels to distribute material information but only after disclosing which social media channels they might use to disseminate the content. Publicly traded companies with active executives, or a presence on various social media platforms, should heed this advice and identify which channels investors should monitor for material content if they do not release the information via traditional means.
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Chapter 2. Platform Terms and Conditions 48 results (showing 5 best matches)
- But there are only a few dozen social media platforms capable of distributing that infringing content in such a manner as to cause economic damage to the protected works. Social media platforms then are incredibly careful about and concerned over the ability of their users to post protected content. How these social media platforms protect themselves from intellectual property violations in turn creates or exposes legal risks for individual users.
- These tools and takedown processes are not enough to fully protect a social media platform that can host billions of violations occurring every day. Social media platforms want their users to be able to post content without getting the platform in trouble. While platforms can use machine-detection and takedown processes to protect all the interested parties, the best way for social media platforms to protect themselves is to shift the burden completely onto the user with certain provisions in the platform’s terms and conditions.
- Operating a social media platform is expensive. The physical hardware necessary to store the copious amounts of posted content, the network bandwidth necessary to distribute and interact with the content, the salaries of the software developers, network engineers, and other professionals required to keep the platform running—social media platforms have incredible scale but they are not without cost.
- Even with this overhead, the vast majority of social media platforms are completely free to users. Some platforms have levels of functionality or storage only available with payment but still offer some form of free services. Social media platforms are then put into the position of generating money to cover their expenses and make a profit.
- Social media platform advertising can take various forms. One single ad can be formatted multiple ways depending on whether it is displayed on a computer, tablet, or smartphone. Ads can be placed in different locations within a program or website. Most importantly, social media platforms offer marketers the ability to target users through highly specific information available via the platform’s data sources.
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Outline 67 results (showing 5 best matches)
Chapter 5. Law of the Crowd 15 results (showing 5 best matches)
- While it is fascinating to see how people have found new ways to connect via social media it is even more interesting to see communities form on social media in order to accomplish something. Whether that effort involves writing a new encyclopedia, forming a group to fund a large project, or working together to ensure justice is done, the ability of people around the world to collaborate for the greater good is astounding. With this new form of collaboration comes a host of legal challenges and risks.
- One of social media’s key strengths is its ability to align connections and their networks of connections around a single conversation. When that conversation turns to “Can you give me some money?” then hobbies can rise to a professional level, new products can be brought to market, companies can be launched, and charitable causes can be funded in minutes.
- The rise of crowdfunding platforms not only demonstrates a powerful expression of social media’s potential but it also increases the risk areas that should be considered by users of these platforms—both those attempting to raise funds and those contributing funds to the causes.
- Whenever a group is formed and a misdeed is denounced there will ultimately be calls for justice. The development of a justice system within any society is a rich area of history and study. Social media, being both a reflection of its members and a new community itself, has found itself in the center of many issues concerning existing justice systems and new forms of justice.
- The two bombing suspects later identified by law enforcement agencies were not identified in any of the pictures posted by these online groups. A large collection of social media users, it turns out, are not a replacement for trained detectives.
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Index 5 results
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- Publication Date: April 25th, 2022
- ISBN: 9781647084042
- Subject: Internet Law
- Series: Nutshells
- Type: Overviews
- Description: Social media has transformed how the world communicates. Its impact has been felt in every corner of our society including the law. Social Media Law in a Nutshell is a wide-ranging look of how the social media transformation has impacted various legal fields. From marketing to employment to torts to criminal law to copyright and beyond, virtually every legal field has been changed by social media. By looking at high level concerns and example cases, Social Media Law in a Nutshell attempts to give practitioners exposure to social media issues and concerns so they can better advise clients and approach the new social media world with their legal eyes opened to new and old risks alike. This book can also serve as a text for law professors looking to expose law students to the burgeoning area of Social Media Law. The second addition covers new cases, regulations, and guidance from government regulators in the social media space.
