Google, Facebook, Twitter, Foursquare—millions of Americans, including myself, depend on these cyber sites as their gateway to information and communication in the outside world. What we may not realize, or choose to ignore for convenience’s sake, is that this gateway lies on a two-way street. The information that we seek using websites such as Google and what we communicate on Facebook and Twitter provide companies with vital data to better market their products to us. This use of information is referred to as “data mining. ”
An example of data mining can be seen in the advertisements that pop up on the side of your Facebook home page. Such ads are often relevant to the information posted on your “Profile” page, such as advertisements promoting products from your college alma mater.
At the outset, data mining seems like a win-win situation for both the consumer and the seller—the consumer is marketed with a product in which they are seemingly interested and the company has utilized its advertising budget in an informed, cost-effective manner. At the same time, however, the threat of an invasion of privacy is real and has the attention of members of Congress and federal officials to create legislation regulating the way in which, and the extent to which, our personal information is shared with third parties.
One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets. We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security. On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.
The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.” The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.” And other intelligent banter.
I was recently introduced to a great new Scrabble word: “meme”. According to wikipedia, my source for all things “e-”, a meme, in reference to the Internet, is ‘the propagation of a digital file or hyperlink’ that contains content consisting of a saying or joke, a rumor, an altered or original image, a complete website, a video clip or animation, or an offbeat news story, among many other possibilities. In other words, an Internet meme is an inside joke that is shared between a large number of Internet users.
Internet memes have a tendency to evolve and spread extremely swiftly, sometimes going in and out of popularity in just days. They are spread organically, voluntarily, and peer to peer, rather than by compulsion, predetermined path, or completely automated means. The term ‘meme’ can refer to the content that spreads from user to user, the idea behind the content, or the phenomenon of its spread.
Ally McBeal fans may now appreciate the reference to the dancing ‘oogachucka’ baby. In an effort to be a bit more up-to-date in my meme references, I’ve embedded some of them, below. If you’re seeing them for the first time, you may experience the ‘lightbulb effect’ – that is, you’ll actually get the joke behind certain late night comedy skits that just didn’t seem all that funny.
His name is Ghyslain Raza, but you may know of him as “Star Wars Kid”, a portly 15-year-old student at a Quebec private high school who had filmed himself wielding a mock light saber, pretending to be a Star Wars character in combat. The two-minute video was supposed to be private, but he left it lying around at his school where three students, who did not know the teenager, came across the video, posted it on the Internet on April 14, 2003, adding a message inviting people to make insulting remarks about the clip.
Unfortunately for him, it wasn’t just his friends who found the footage so amusing. The video went ‘viral’. One Web log that posted the video was allegedly downloaded 1.1 million times, and by October 2004 one Internet site dedicated to the video had recorded 76 million visits. According to UK marketing firm The Viral Factory, it became the most downloaded video of 2006. So mortified was the teenager that he dropped out of school and finished the semester at a psychiatric ward. According to the student, “It was simply unbearable, totally. It was impossible to attend class.” More than 35 other revised versions of the video clip, created by other people, have found their way to the Internet, with additional sound and visual effects.
This is an extreme but far from unique example of the devastation wrought by cyber-bullying, the term given to internet conduct in which students harass other students by e-mail and on the internet. Given the potentially devastating consequences of cyberbullying, should schools have the power to discipline their students engaging in this form of harmful conduct?
A major issue confronting school boardsis that cyberbullying usually does not take place at school, although its effects can later reverberate among students during school hours. Students may post offensive material from home, or other times outside of school hours, but the targets are fellow classmates. Is it appropriate for a school board to discipline a student for posting such material simply because the postings are being accessed by other students at school or target other students? At the same time, with power comes responsibility – if school boards have the power to discipline students for their behavior outside of school, are schools then to be mandated with the responsibility to essentially monitor and censor the world-wide web? Just how far should a school board’s jurisdiction extend regarding inappropriate off-school student e-conduct?
A man and a lion were arguing about who was best, each one seeking evidence in support of his claim. They came to a tombstone on which a man was shown in the act of strangling a lion, and the man offered this picture as evidence. The lion replied, “It was a man who painted this; if a lion had painted it, you would instead see a lion strangling a man. But let’s look at some real evidence instead.” The lion then brought the man to the amphitheater and showed him so he could see with his own eyes just how a lion strangles a man. The lion then concluded, “A pretty picture is not proof: Facts are the only real evidence!”
The moral of the story has indeed changed since the times of Aesop, at least in today’s courtroom. Social networking websites such as Facebook, MySpace, and Twitter invite attorneys and their clients into a lion’s den of pictures and postings, creating a haven for evidentiary consequences that can be unexpected obstacles if attorneys are unprepared to counter them.
INTRODUCTION
With claims such as “Facebook is a great place to keep in touch with friends,” “Using Twitter is going to change the way you [stay] in touch,” and “MySpace lets you meet your friends’ friends,” social networking websites are, admittedly, enticing. This article surveys recent evidentiary issues involving these sites across multiple practice areas and counsels how to avoid some of the adverse rulings discussed herein.
Who would have thought a comment as innocent as “Just walked into work at Cozen O’Connor-Toronto…so much work to get done” could potentially cause you so much trouble?
I came across an article this weekend by Tracy Staedter, titled “I’m Not Home: Please Rob Me”. Ready to become paranoid? Read the article – it’s short and to the point. Ever send out Evites? How about prior tweets, MySpace posts, etc. inviting people to your place and including an address? Bingo! Better pack up and move quick!
The website causing havoc is www.PleaseRobMe.com. Check it out…make sure you aren’t on the site…then check again after every time you tweet, post, etc. Do you have the time to constantly check? Probably not. Should you? Probably. It may make you paranoid, but then again, shouldn’t you be? But should the creators of the website be blamed – legally, morally, ethically? Should they be held accountable for what you put out into the public realm? Can you sue for violation of your privacy rights? Do you really have an expectation of privacy in any of those posts? In an age where MySpace, Friendster and other social networking sites regularly have their records subpoenaed, why should anyone think that anything they post will be “private”? What piqued my curiosity even more was how this website could apply in the criminal or tort law application. Can this website be used to substantiate or corroborate an accused’s alibi – “Your Honor, look! I have proof that I wasn’t in the city when the crime occurred…I tweeted that I would be in Los Angeles!” Look, my knowledge of Canadian (or U.S., for that matter) Criminal Law/Procedure does not extend further than the 800 or so pages of textbooks I read while in law school. But surely this website can be put to more use than just what the creators intended. So long as a proper foundation is laid, and the purported evidence is relevant, it may be admitted, right? Something to definitely consider as a defense attorney.
The creators of the website claim the site is supposed to help us…to open our eyes to the evil out in the world. Call me crazy, but perhaps a simple email addressed to me would have been more appreciated…though it leaves one wondering if such a logical course of action would have been as effective.
Pamela Pengelley, our resident expert on Facebook, is now internationally recognized for her expertise.
Most recently, Pamela was quoted in an article published by Law 360 entitled “Poking Around Facebook Could Win Your Case.” According to Pamela, “‘Lawyers are realizing [Facebook] is a gold mine of information…it’s pretty much standard that you subpoena Facebook when you get a personal injury action. It’s not a substitute for having a private investigator, but people will put up incriminating photos online without realizing that there can be consequences in a lawsuit.’”
Pamela further observed that Facebook is “most effective in lawsuits where plaintiffs are claiming an injury, such as when their health or ability to work has allegedly been impaired”.
Kudos to Pamela. Where will her sage words of wisdom appear next?
It is axiomatic that it is much easier to find almost any information in the age of the Internet, thanks to the vast quantity of material that has been scanned and made available, and which is searchable through the likes of Google.
What is of concern, but only occasionally mentioned, is what we have lost.
The original manuscript of Charles Dickens’s Christmas Carol has recently been exhibited. The manuscript is covered in edits made in the great author’s own handwriting that give us insights into the way in which he worked and thought. We can look at early works like this by any number of famous authors: Mark Twain, Conan Doyle, Jane Austen. But what author, writing today, keeps earlier drafts? They go into electronic limbo, get deleted and lost forever. Will anyone in a hundred years be able to examine Ian McEwan’s work the way we can that of Dickens?
Take another example. I have just read a collected edition of letters written to T.E. Lawrence (Lawrence of Arabia); by the likes of Winston Churchill, Ezra Pound and George Bernard Shaw. These letters provide wonderful insights into Lawrence’s character and thinking on a variety of issues, as well as fascinating revelations about the process of writing his great book, Seven Pillars of Wisdom. Flash forward eighty years. Would these letters have been written in the Internet age? Or would the correspondence have been sent via email? If so, would it still exist? Probably not. To the world’s great loss.
Because of the Internet, much of the process of human creativity is gone forever. If there is an answer to this, I have not seen it discussed. And what of human creativity itself? The Internet, and the forms of entertainment available via it, can be far more absorbing and consuming than television ever was. People have died while gaming, unable to tear themselves away from their computers to eat, drink or sleep. But how much is lost to the time people now spend lost in the World of Warcraft and its ilk, let alone IM-ing, downloading videos from Youtube and blogging the mind-numbingly boring minutiae of their daily lives. Time that would once have been spent writing, painting, learning a musical instrument or a language? A serious concern? Or am I echoing the cry of my parents who once told me that I would get square eyes if I spent too much time in front of the television?
Intuitively, it might appear that loss of information in the internet age is less of a concern with respect to the law. We can now locate and retrieve cases and legislation more easily than at any time in the past. The same goes for government and legislative documents of all kinds. It is a trait of the profession; lawyers and government agencies tend to keep everything. Correspondence, even though compiled electronically, is usually kept, and stored digitally. As well as the end product, everything to do with the process of creating legislation, or conducting litigation, is retained. That said, how secure is this information? Richard Bortnick recently posted an interesting article on cloud computing which discusses the need to be cognizant of data corruption and other risks of electronic data storage.
It is interesting, if quite appalling, to muse, that post the Apocalypse, long-in-the-future archaeologists and anthropologists will write studies and hypothesize about our society based on the treasure troves they uncover of ancient legal documents. Oh, and our blogs and tweets
LawPRO Magazine is published by the Lawyers’ Professional Indemnity Company (LPIC), the wholly Canadian owned insurance company that provides mandatory professional liability insurance to lawyers in private practice in Ontario.
In the December 2009 issue, LawPRO Magazine has run a “Social Media” theme, dealing with “Why, What and How to Do It Right”, including an article that sets out a useful summary of Canadian case law on the use of social networking sites in litigation: “Litigation and Online Social Networking Sites“.
Other articles that may be of interest include:
“Social Media: Why?” - An overview of how social media are changing the legal landscape.
“Social Media: What?” – A guide through the many social media tools available PLUS interviews with five lawyers who walk the social media talk.
“Social Media: How?” – A primer on social media as marketing and networking tools in law practice.
“Social media pitfalls to avoid” - A discussion of some of the dangers inherent in using social networking tools, and how to safely exploit the marketing opportunities they do offer.
LawPRO Magazine also offeres a number of technology-related articles with practical information for lawyers and businesses, all of which are freely available online.
Remember the good ol’ days of the Commodore 64, back when fluorescent colors were fashionable and “Computer, earl grey…hot” was to boldly go where no one has gone before?
Well, those days are now behind us, and unless you’re one of the stubborn few who still use a phone line to dial into “those newfangled internets”, you have probably heard of Google’s new search by site application, “Google Goggles”.
On Monday, Google announced the launch of a new search engine that allows users to perform an internet search simply by submitting a photograph. Instead of using words, you can take a picture of an object with your camera phone: Google will attempt to recognize the object, and return relevant search results to you. The experimental search-by-sight feature, called Google Goggles, has a database of billions of images that informs its analysis of what’s been uploaded. Vic Gondotra, Google’s vice president of engineering, has said: “It is our goal to be able to identify any image. It represents our earliest efforts in the field of computer vision. You can take a picture of an item, use that picture of whatever you take as the query.” The application is still in a very early stage of development, however, and works best with objects, books, album covers, artwork, landmarks, places, and logos. You can view Google’s video of the application below:
Google, Facebook, Twitter, Foursquare—millions of Americans, including myself, depend on these cyber sites as their gateway to information and communication in the outside world. What we may not realize, or choose to ignore for convenience’s sake, is that this gateway lies on a two-way street. The information that we seek using websites such as Google and what we communicate on Facebook and Twitter provide companies with vital data to better market their products to us. This use of information is referred to as “data mining. ”
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