Wise Law Roundtable: Rogue Articling Students and a Lawyer's Duty to Supervise

Commentaries from Wise Law's lawyers on current cases of interest 

Background

All lawyers are expected to be good ambassadors of the profession and the justice system. This is not only when in court or in the office, but also when online and in the public eye generally.

In Law Society of Ontario v. Marco Forte, 2019 ONLSTH 9 (CanLII), a senior lawyer recently accepted disciplinary penalty from the Law Society because he failed in his duty to adequately supervise an articling student who was not living up to the standards of professional conduct on some online message boards, and Twitter.

But how far does this duty go? How much online activity can a lawyer - and should a lawyer - be expected to police?

A senior criminal lawyer, Marco Forte, hired his first-ever articling student. Her conduct online quickly became a problem, according to the ruling. Less than a month after she began articling, the student got in a verbal altercation with Court staff, flipped them her middle finger, and had to be escorted from the Courthouse by police. She took to twitter to allege that she had been illegally arrested.

She also made a number of posts on a Criminal Lawyer’s Association listserve, in which she made comments about “white male privilege” that other members found offensive and disparaging. She also made comments that apparently seemed to break rules about confidentiality. She also tweeted derogatory comments about Justices of the Peace, Crown attorneys and her firm’s clients:

...a Twitter post on September 3, 2015 reads as follows: “welp. apparently some JP’s just love to powertrip for no fucking reason at all, wasting everyone else’s time while at it.”

This pattern continued from July 2015, to December 2015. The lawyer put her on suspension, after being informed that she had tweeted publicly “about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots [and] also described them as having jobs that were incredibly ‘futile and outdated.’”

Meanwhile, even while on suspension, the student:

“...continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

The Tribunal decision acknowledges that Forte knew about much of the student’s conduct all along, and was trying to address it with her, and supervise her, to prevent her from this kind of rogue social media activity.

However, the Tribunal found that Forte hadn’t gone far enough to curb her behaviour. While he did not “abdicate” his responsibility to rein her in, the Tribunal found:

“...the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control [her] Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.”

Our lawyers had these thoughts on this ruling:

GARRY WISE: A problem here is that this was a  consent disposition, and none of these issues appear to have been argued or adjudicated in any meaningful way.  I suspect this lawyer agreed to a slap on the wrist to avoid the enormous costs that would have been incurred in defending this.

SIMRAN BAKSHI: Reading between the lines, I think that the Law Society may have been troubled by the fact that the Lawyer requested the student to create a twitter account and website for the firm, which he did not monitor. As well, the disciplinary action that he did take was a suspension over what would have been Christmas break.

PAUL ADAM: The passage that bothers me is this one:

[46] “The Lawyer did not abdicate his responsibility to supervise his student; the problem was that his efforts, while well-meaning, were ineffective. As one of the Lawyer’s character witnesses put it, the Lawyer “struggled to assist [her] as best as he could” and “often spoke of his frustration” in helping her. He did not fail for lack of trying.”

PAUL ADAM: I do wonder if Courts and tribunals are swinging from a position of having no interest or faith in technology, to having wildly unrealistic expectations of how lawyers ought to be using and monitoring technology to accomplish things that are just not possible.

GARRY WISE: I’m not sure what more the lawyer could have done.  How does one monitor an undisclosed Twitter account?  Does linking a Twitter page to a firm website really equate to advertising?

SIMRAN BAKSHI: I agree that it seems problematic to connect a personal twitter page to a firm simply because it contains a link to the firm's website; however it seems that in this case at least several different members of the public drew a connection between her inappropriate conduct and the firm, simply from looking at her page.

PAUL ADAM: It reminds me of a costs decision that was reported a few months ago, Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. It was a summary judgment motion on the issue of occupier’s liability. Whitten J. was not prepared to allow a $900 billing for legal research, on the grounds that the use of “artificial intelligence sources” could have cut down on counsel’s time on the file- no further explanation as to what that would entail. It’s a further case of a challenge is being put to lawyers involving the changing use of technology but we’re missing a meaningful standard of what a lawyer actually should or should not be doing, it’s just an admonishment to “do better.”

GARRY WISE: I’d be curious what an employment lawyer would have recommended had the lawyer consulted with one as these events were unfolding. At what point could termination for cause have been a viable option?  The termination of an articling student is not a decision to be taken lightly.

SIMRAN BAKSHI: I can understand how the lawyer may have had some responsibility to monitor the student’s Twitter account and take disciplinary action where warranted, after he was made aware of some her disparaging comments, but to require that he “control” her personal Twitter feed strikes me as being unreasonably onerous.

What are your thoughts?  Let us know in the comments or @wiselaw on Twitter.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

The Lawyer's Weekly: Social Media Postings Creating a Litigation 'Gold Mine'

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

I was recently interviewed by Lawyer's Weekly correspondent Kim Arnott regarding the impact that social media can have in family law litigation.

Given the nature of issues presented in family law, it is really not all that surprising to see social media increasingly relied upon by the Courts as an important tool to better understand the conduct and lifestyle of the litigants involved.

To learn more about how social media is shaping our litigation system today, I would recommend reading this article; Social media postings creating a litigation 'gold mine'.

- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Using Social Media To Build Your Online Reputation

BY GARRY J. WISE, SENIOR COUNSEL 

I was recently interviewed by Law Times correspondent Jim Middlemas on the role of social media in Canadian law practices.

It was a good opportunity to briefly discuss the history of Canada's legal blogosphere and to recall the early years of Wise Law Blog.

See the resulting article, Using social media to build a reputation, via Law Times, which includes quotes from me, among others.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Social Media in Family Law Matters

BY SIMRAN BAKSHI and RACHEL SPENCE

How much is it worth to bash your spouse on social media? 

These days, the cost could be more than you might think.

Canadian Courts have seen the use of social media as evidence in family law proceedings increase dramatically in the past few years.

• Westhaver v. Howard, 2007 NSSC 357, the Nova Scotia Supreme Court (Family Division) considered crude and homophobic comments posted by a father on social media and found those comments to be evidence of the father's poor judgment, ultimately denying the father access to the child;
• M(MJ) v. D(A), 2008 ABPC 379, the Alberta Provincial Court dismissed a father's application for guardianship of his child and ordered modest access, relying in part on the fact that the father had "demonstrated and displayed publicly (at least to his some 95 'friends' on his Facebook page) his disregard and callous lack of consideration of the mother" and that the father had simultaneously posted photos of the child online, thereby linking "the child to his rancour... and, despite her young age, also exposed her to adult-appropriate matters";
• W(JWA) v. B(A), 2008 NBQB 157, the New Brunswick Court of Queen's Bench (Family Division) admitted into evidence photographs found online that showed the mother dancing at a bar, drinking alcohol and smoking marijuana. This formed part of the basis for finding that it was in the child's best interest to reside primarily with the father; and
• Byram v. Byram, 2011 NBQB 80, the New Brunswick Court of Queen's Bench (Family Division) considered the vilifying comments made online by the father about the mother in granting the mother sole custody. 

How to Protect Yourself

While most of this may be common sense, this may nonetheless be a beneficial reminder:

• Never post / tweet anything about or in relation to your ex online that is negative or alludes to negative feelings about him or her;
• Do not post anything in relation to any extracurricular / adult activities you may be involved in, or anything that could be misconstrued ie.: partying, alcohol, drugs;
• Use your privacy settings and make your social media private;
• Do a thorough sweep of your “friends” on social media and delete/block anyone who may have the potential to create drama in relation to your family law matter.
• Do not post/tweet anything that you would  not want a judge to read and,
• For those who have a very hard time controlling themselves in moments of volatility, we suggest deleting your social media completely or limiting it.

Collecting Evidence

You cannot deceitfully or illegally collect evidence from a spouse’s social media page. Put simply, you cannot hack his or her Pinterest or Facebook pages or make a fake account, get accepted as a friend and collect evidence. 

However, if one of your former partner's legitimate online friends shares posts with you that relate to your ex, you likely may use them if they pass the legal test of relevance.

In many cases your ex’s online presence may confirm things are not as you have been told. For example, a former partner who: 

• Posts about a job while claiming in Court documents to be unemployed 
• Posted photos of luxurious vacations while claiming to have no assets
• Posts pictures or video disclosing inappropriate behaviour around the children, 
• Posts rants about you, or rudely alludes to you or your character or your parenting skills.

If you suspect that your ex or someone close to him or her may be posting something like this online, it is in your best interest to do a thorough but lawful inspection of his or her online presence and maintain diligent records and screenshots to provide to your lawyer.

Now that you’ve taken the time to read this, consider the following for a moment.

What you have to gain by posting anything negative in relation to your ex online?  

The answer is:  Nothing.  

It will not assist you legally in any way and could instead, potentially harm your case.

So don't do it.

If you are involved or could become involved in any family law dispute, have fun online but...

Always practice safe social (media).

- Simran Bakshi, Lawyer & Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

How Your Social Media Footprint Can Backfire on You in Court

There is no denying that we live in a new age of social media, where expressing your inner most thoughts and personal feelings to an online audience is just plain normal.

While it may be tempting to speak out about the trials and tribulations you encounter with your ex spouse following the breakdown of your relationship, airing your frustrations online can cost you a whole lot more than you think …

Canadian Courts have seen the use of social media as evidence in family law proceedings increase dramatically in the past few years:

• M(MJ) v. D(A),　2008 ABPC 379 -The Court in this case dismissed an application for guardianship for the parties' child that had been brought by the Father, instead granting him very modest access.  This decision was made in part due to the Court's finding that the Father had "demonstrated and displayed publicly (at least to his some 95 "friends" on his Facebook page) his disregard and callous lack of consideration of the mother and his demeaning and dismissive attitude to her". The Father's online activities sadly led the Court to determine that: "... there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child."
• W(JWA) v. B(A),　2008 NBQB 157 - In this case, the Court admitted Facebook photographs into evidence, which depicted the Mother dancing at a bar, drinking alcohol, and smoking marijuana. In consideration of the totality of evidence, including these photographs, the Court was of the opinion that the Mother lacked the same maturity as the Father, who appeared to be better suited to care for the child's physical, emotional, social and economic needs. This ultimately led tot he Court finding that it was in the child's best interest to reside primarily with the Father.
• Byram v Byram, [2011] N.B.J. No. 120. - The Mother in this case was granted custody of the parties' children in part as the Court determined that the Father had "spared no effort to vilify the Applicant through Facebook and the internet...." In the circumstances, the Court was not prepared to grant joint custody, noting that this would only be appropriate in cases "where the parents can cooperate and communicate effectively". 
• Tran v Tran, 2015 ONSC 5838 - In this case, the Mother relied upon Instagram and Facebook posts as evidence that the Father was currently employed and had purchased a BMW instead of providing child support. Though the motion judge was not prepared to impute income to the Father, it was noted that the mother's evidence was strong, and the issue was reserved for trial.

How to Protect Yourself 

While it may seem like common sense, it is a beneficial reminder:

• To not post and/or tweet anything about or in relation to your ex online that is negative or alludes to negative feelings about them;
  
• Do not post anything in relation to any extracurricular/adult activities you may be involved in, or anything that could be misconstrued (In other words, posting that picture of you passed out in a bar surrounded by empty beer bottles may not be the best idea);
  
• Use your privacy settings and make your social media private;
  
• Do a thorough sweep of your "friends" on social media and delete/block anyone who may have the potential to create drama in relation to your family law matter.
  
• If you have a hard time maintaining your composure online, you may want to consider temporarily suspending or even deleting your social media accounts, particularly during the course of your family law litigation;
  
• As a rule of thumb, do not post or tweet anything that you would not want a judge to read.

Collecting Evidence

A few things to bear in mind:

Firstly, you cannot deceitfully or illegally collect evidence from a spouse’s social media page. Put simply, you cannot hack your ex's social media page, or make a fake account for the purposes of gaining access to collect evidence.

That being said however, if you do come across some useful information online through the proper channels, it may be possible to rely upon and use this in your litigation.

In many cases your ex’s online presence may confirm things are awry. For example, he/she may post about a job though claiming to be unemployed; post pictures of his/her luxurious yacht vacation, though alleging to have no assets; or post pictures or comments that suggest poor parenting judgment.

Now that you have read this, consider for just a moment what you could possibly stand to gain from ranting about your ex online…The next time you are tempted to post a not-so-friendly tweet about your ex, just imagine the cringe-worthy moment when it is read out loud in open court.

- Simran Bakshi, Associate and Rachel Spence, Law Clerk

@wiselaw on "Top 20 Ontario Law Twitter Accounts" Listing

BY GARRY J. WISE

Thanks to the good folks at Lawsome for including us in their list of Top 20 Ontario Law Twitter Accounts, reproduced below:

1. Law Times: @LawTimes (Ontario legal news online publication)
2. Obiter Dicta: @obiterdictaoz (Osgoode Hall student newspaper)
3. Precedent Magazine: @PrecedentMag (Toronto lifestyle magazine for lawyers)
4. Ultra Vires: @UltraVires (Student newspaper for @UTLaw)
5. Ontario Bar Association: @OBAToday
6. Toronto Lawyers Association: @TLAVoice
7. Law Society Upper Canada: @LawsocietyLSUC
8. Brenda Hollingsworth: @OttawaLawyers (Ottawa personal injury lawyer)
9. Mr. Toronto Lawyer: @selwynpieters (Human rights and civil litigator)
10. Chantal Desloges: @Twimmigration (Toronto Immigration Lawyer)
11. Omar HaRedeye: @OmarHaRedeye (Toronto Lawyer and legal academic)
12. Daniel Brown: @DanielBrownLaw (Toronto Criminal Defense Lawyer)
13. Sean Robichaud: @SeanRobichaud (Toronto criminal defense lawyer)
14. Anjli Patel: @bluechipfashion (Toronto Fashion Lawyer)
15. Melissa Kluger: @MelissaKluger (Lawyer and publisher of Precedent Magazine and Precedent A-List)
16. Jeff Gray: @jeffreybgray (Law Reporter, Globe and Mail)
17. Lisa Feldstein: @lisaFeldstein (Ontario health Lawyer with focus on family health law)
18. Garry J. Wise: @wiselaw (Toronto lawyer-  employment and family law)
19. Andrew Mercer: @AndrewLMercer (Toronto insurance lawyer and author)
20. Kathryn Marshall: @KVMarshall (Lawyer and Columnist – creator of Lawsome.ca)

There are some very good accounts in this listing, so do check them out.

And of course, we invite you to follow @wiselaw on Twitter.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Is Facebook Indirectly Your Employer?

A recent article published by at Huffington Post shone an interesting light on Facebook's contribution to the Canadian job market.

A study prepared by Deliotte of some contention (as it was funded by Facebook) found that the social media giant may have indirectly contributed to the creation of 82,000 Canadian jobs, adding approximately $5 billion to our economy in 2014.

These calculations were apparently based on Facebook's role in driving increasing sales of smart phones and apps in our nation.

Are you convinced?

-Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Goodbye Google Reader: Survival Tips for July 1 and Beyond

Today at SlawTips, I look at the world after Google Reader, which is to be closed down on July 1st, and offer a few promising alternatives for legal power-users who just can't do without their daily RSS reader fixes:

So where shall we go on July 1 to find our vital law blog updates, breaking legal news, Law Society dispatches, musings in the legal press and NHL off-season developments? 

Worry not, good citizens.  SlawTips to the rescue!

See the entire post:  Survival Tips for Google Reader's July 1 Demise.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

"CourtBerry Syndrome" and Why Some Jurors Can't Resist Tweeting

Trial judges routinely warn jurors to avoid  using social media and the internet to research or comment on matters before the court during trials.  Nonetheless, news reports of jurors who disregard these instructions seem to be increasingly frequent.

Such juror misconduct has potentially disastrous consequences for the administration of justice.  A December 2011 Arkansas appeal provides a ready illustration - see Death row inmate gets second trial due to Twitter-obsessed juror:

In a tweet referencing the trial, Franco wrote ”Choices to be made. Hearts to be broken…We each define the great line.” He also posted updates when each day of the trial started and complained about the coffee. In addition, Franco posted “It’s over” less than an hour before the jury’s verdict was read in court. According to Associate Justice Donald Corbin, Franco was warned during the trial that posting updates to Twitter was forbidden. Corbin stated ”More troubling is the fact that after being questioned about whether he had tweeted during the trial, Juror 2 continued to tweet during the trial.” The Supreme Court justices of Arkansas recently asked a panel to look into restricting the use of smartphones during future trials.

Villanova law professor, Louis J. Sirico, Jr,. offers a generational analysis at Legal Skills Prof Blog as to why some jurors seem unable to resist tweeting and googling during trials:

In November 2008, the Lord Chief Justice of Great Britain, Sir Igor Judge, sounded a warning about the generational shift occurring as web-savvy citizens accustomed to getting their information online entered the jury box. Noting the consequences of this shift for the system of trial by jury, the Lord Chief Justice observed, “If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.

If our brains are, indeed being rewired by the internet, as early clinical research seems to suggest, is compulsive juror mistweeting simply the cutting edge of a genuine change in our physiology that is naturally finding its way into our courtrooms?

Is crackberry syndrome mutating into courtberry syndrome?

And how can our courts address this?  

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

WRONGFUL DISMISSAL • CIVIL LITIGATION AND ESTATE LITIGATION • FAMILY LAW AND DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Why like social media?

I am quoted in this article on the legal profession's utilization of social media: Why like social media? - Lawyers Weekly

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Video: Legal Ethics in an Age of Technology

Legal Ethics in an Age of Technology...

That sounds a wee bit lofty, no?

Some of you are probably thinking, “Ethics?  We're talking about Facebook and Twitter, here, right?” Well as you will see in this video, the more involved a legal professional gets in social media, the more likely it is that an ethical question might just fall into his or her lap...


This video was originally presented at a Law Society of Upper Canada Continuing Professional Development Webinar, "Ethical Considerations in the Age of Technology" on October 7, 2011.

Join us on November 21, 2011 for Round II of our panel discussion with Bob Tarantino, Mitch Kowalski, Omar Ha-Redeye and yours very truly.  Register here.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

LSUC Webinar: Ethical Considerations in an Age of Technology - October 7, 2011

I'd like to invite our readers to participate in "Ethical Considerations in an Age of Technology," a free, accredited Law Society of Upper Canada webinar I'll be chairing on October 7, 2011 at 1:00 p.m.

We will be looking at the Ontario Rules of Professional Conduct against a backdrop of recent, newsworthy developments in the online world.

What professional responsibilities arise when we participate in social media - and in an online environment, generally - in which data breaches, hacking and good, old fashioned human foibles are increasingly prevalent? What are our duties to the profession and the public?

Joining me as presenters are a blue-chip panel of esteemed colleagues, namely Bob Tarantino of Entertainment and Media Law Signal, Mitch Kowalski of  FP Legal Post and Omar Ha-Redeye of Slaw.

Participants earn credit for two CPD professionalism hours.  Register here before October 5, 2011.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Thinking of Making the Switch from Facebook to Google+?

Are you thinking of switching to Google+?

Eweek takes on this question today, and provides ten compelling reasons to make the change. Most convincing to me are:

• The ease of directing and limiting your shared items to specified groups of contacts, and
• Google+ introduces revolutionary video chat capability that enables instant video conferences involving up to ten participants (or more, I suppose, if multiple people are on camera at any of the participating locations).

The only problems so far, however, are that practically nobody can really figure out how to use Google+, and virtually nobody is using it.

Lots of people are apparently exploring, according to media reports - 10 million users in two weeks is certainly not shabby. Still, there's not a lot of activity going on yet, outside of the unapologetic geekosphere, which has been drooling non-stop since this service was launched.

My early review is that this newest social media giant is here to stay. I suspect it will ultimately develop a peaceful co-existence with Facebook and Twitter as competing networks with very different identities and distinct purposes.

I'd be very surprised to see any mass exodus from Facebook, as some are now predicting. Google+ will not topple the others simply because it exists, no matter how sexy, shiny and new it may now be.

As its real points of difference from the other sites emerge, however, it will likely be a very strong, permanent player.

What will the Google+ identity and culture ultimately be? I think it's way too early to tell, but I am quite sure this service will slowly and convincingly continue to evolve.

At very least, I suspect it will emerge as a central social media hub for lawyers (and businesses generally), due to its built in integration with other Google services. Its video conferencing capability is certainly going to be extremely tempting, as well, for limitless commercial applications.

The virtual courtroom, for example, could be much closer to reality than we think.

Imagine arguing procedural motions from the comfort of your own office via Google+ video sessions that involve all counsel and the presiding judge. All of this, free of charge, and no waiting time wasted before you are reached on the Court's list.

For what its worth, the official Google+ iPhone app is now available. Google+ Mobile download information for all platforms is here.

The iPhone version is quite sleek and I'm sure it will get lots of use.

(If we can figure this darned Google+ thing out, that is).

My Google+ profile page is here, if you'd care to share.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Proposed California Law Tackles Social Media, Privacy Concerns

A proposed new law in California would have radical implications for Facebook and other major social media sites:

The bill, which would apply only to users in California, would prohibit sites from displaying users' home addresses or telephone numbers without their consent and would mandate services remove of any information about a user within 48 hours of the request, or face a $10,000 fine.

Under the proposed law, social networking sites would be required to have all users choose their privacy settings--explained in "plain language"--as part of the registration process. It also spells out a privacy setting that would be mandated to serve as the default on all sites and that would prohibit "the display...of any information about a registered user, other than the user's name and city of residence, without the agreement of the user."

Perhaps predictably, Facebook has already commenced lobbying against the bill, claiming it is a "serious threat" to "California consumers' choices about use of personal data." However, their argument essentially hinges on the idea that consumers of social media products won't be able to give up their privacy until after they've become familiar with the service they're using.

This seems to be an odd complaint, but from Facebook's point of view it's quite obvious: the site's growth is dependent on users being able to easily and rapidly find their friends and family on it, and if users don't enter personal information relatively early on in the signup process it becomes much less likely that they'll do so later on (since once one is a member of the site, people tend to dismiss additional requests for personal information - which is exactly why sites like Facebook ask for it up front), and thus impede Facebook's core usability.

The question, then, is whether the facility granted by being able to use Facebook (and for all that we say "sites like Facebook," we of course are really only talking about Facebook at this point, as most other social media services aren't nearly so personal-information-dependent for their use) is of more benefit, from a public policy perspective, than the privacy that one inherently must give up to use those sites effectively.

At this point, the question of Facebook's social utility is one that requires more serious debate. Facebook's use as a platform for collective action is only starting to be exploited, whether it is for political action or even modifying Facebook's design and policies thereof. On the other hand, "Facebook-stalking" has entered our lexicon for a reason: the site makes it exceptionally easy to cyber-bully people, and even to do so anonymously.

Does Facebook's "power for good" outweigh the dangers it can create with its relatively invasive standard privacy setting? Does it at least balance it enough that a law like the one proposed in California is needless? This writer is genuinely not sure; on the one hand, laws like this do seem somewhat nanny-statish, but on the other hand firmly reminding people that their privacy can be at risk when participating in social media seems to be an obvious good.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Courtney Love and the Trials of Twitter

PostMedia culture writer Misty Harris explores the pending, California defamation trial of rocker Courtney Love over explosive allegations made on Twitter. See Technological freedom comes with a price: Just ask Courtney Love.

The Canada.com article also includes my own comments.

Ultimately, social media has come of age, and with that age comes responsibility. Our courts are now defining where and when that responsibility arises.

Social media users should indeed be aware that our laws continue to apply in the virtual world.

With increasing regularity, courts are being asked to adjudicate lawsuits arising from questionable online behaviours. Time after time, we are seeing judges conclude that the same rules of law apply, whether we are online or in the realm of brick and mortar.

For example, see our posts highlighting recent Canadian rulings arising from defamatory comments on Facebook and on blogs:

• B.C. Ex-Spouse Awarded $40,000 For Defamatory Facebook, Internet Posts
• Blogging, Responsible Journalism and Damages for Libel

Ultimately, it will likely matter little that a defamatory comment has been made on Twitter, as opposed to the public square.

Social media is the new public square, and regardless of the outcome, the Love case - and the media attention it is receiving - will remind us all that the internet is no longer a "responsibility-free zone."

Trial of the Love case has been adjourned to February 8, 2011.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Social Media in 2010 – No Surprises, Just Evolution

The Scoop, JD Supra's legal marketing blog, has today published its annual year-end summation, What Surprised You In 2010? Perspectives from Legal Professionals.

Today's Scoop post contains excerpts from many, varied contributors to this annual legal thought-fest. The complete, extended commentaries can be downloaded here, in PDF and MS-Word formats.

Canada's representatives this year include Steve Matthews, Jordan Furlong, and myself. Thanks to Adrian Lurssen and the good folks at JD Supra for including my thoughts once again in 2010.

My contribution to the mix, 2010 – No Surprises, Just Evolution, is reproduced below.

- GJW

****

2010 – No Surprises, Just Evolution

There were no great surprises in 2010 for lawyers who’ve had their fingers on the pulse of the social media world - just a natural progression.

The once-radical thought that there is a bona fide professional use for social media in the legal profession has been mainstreamed and normalized. Lawyers’ participation online has exploded into an ever-increasing offering of blawgs, tweets, and social media updates.

In fact, as I suggested in an October 2010 post, Social Media and the Legal Profession: Where are We Today?, the primary challenge ahead is no longer about participation; rather, it’s about integrating our multi-platformed online presentations:

Once you have a website and blog, are on Facebook, LinkedIn, Twitter, YouTube, Digg, etc., how do you tie it all together - with the least amount of extra hands-on effort - into a cohesive, seamless and consistent presence that establishes a brand or identity that is both authentic and digestible for readers?

In a natural, logical evolution, the modern world continues to pull lawyers and our courts into this tech-centric 21st century.

Within the last year or so, courts in Canada, the UK, Australia and the USA have permitted journalists to live blog, text-message and tweet from the courtrooms. Canada’s Supreme Court has recognized that bloggers are afforded “responsible journalism” free-speech protections; similarly, bloggers have been held accountable for defamatory publications that have crossed the line.

In some cases, courts have authorized service of legal documents via Facebook. Facebook, itself, has responded to document-retention and electronic discovery requirements by introducing a Download Your Information feature, enabling retrieval and local storage of each user’s Facebook content. Privacy advocates won a series of public battles over the protection of private information on social media sites. Courts have ordered “virtual child visitation” via Skype. And, in Ohio, judges received a green light to “friend” lawyers on social media sites. In South Carolina, Florida and other jurisdictions, it is not so clear.

Looking ahead, this evolution will no doubt continue in 2011.

In the legal profession, greater attention will be focused on the ethical do’s and don’ts of lawyers’ social media participation. We will consider whether blawging should count toward lawyers’ mandated CLE requirements. And our courts and governments will struggle with (and attempt to draw defined lines in the sand) in this brave new world of instant communications, democratized access to publication tools, and blurred distinctions between the public and the private.

Finally. the emerging WikiLeaks debate – is it journalism or espionage? - is likely to be the spark at the center of a crucial, dramatic discussion ahead that will do much to define where we, as a society are heading, online and offline.

It will continue to be fascinating to watch the developments unravel in real time.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG