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

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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

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Saturday Poli-Tunes: Teflon John

From Max and The Marginalized - Teflon John:

There's something worth pointing out about this California-based band beyond its music and politics - that is the state-of-the-art model it is using for its self-marketing and distribution.

Fearturing members Max Bernstein, Jon Ryggy and Dave Watrous, the band hosts a blog on Blogger and pages on MySpace and Facebook. Its music videos are all found on YouTube

It brands itself with the tagline, Political Music. One Song Each Week. Indefinitely, and then delivers, giving listeners and fans a reason for returning each Thursday.

With a running spot at the prestigious Huffington Post that certainly drives traffic and blogger awareness, Max announces its raison d'etre:

Max and the Marginalized are a band and a blog. The idea behind it is pretty simple: there is more of a need for political music than ever, but there are fewer political bands than there have ever been. Furthermore, how could a political band write a song about something happening right now and then wait months or years for their album to come out, when the story is long over?

And its monetizing strategy, you ask? A running request for voluntary donations by PayPal - downloads on the "honour system" - to help to pay the stated costs of recording, sixteen studio hours per song at $25.00 per hour.

But if you can't afford to pay, Max tells you:

I must stress: IF YOU CAN'T AFFORD TO DONATE, PLEASE STILL GO AHEAD AND DOWNLOAD. I know you would if you could. When people donate a little more, what they're doing is buying the songs for you, so please download and thank them.

This financial strategy might or might not make the band immediately rich - but it, and the group's ongoing, newsy musical offerings - could wind up making it famous.

And that, in the vernacular, is what buzz is all about.

Kudos to Max and the Marginalized for getting it right - using everything the Internet now offers to market itself, get its tunes out there, build a following and get on the map.

While major labels will always be the key players promoting the mega-acts - the Britneys and Whitneys of the music world - self-help by social media is now the better way to fly for most newcomers and mere music mortals.

And Max shows you the way to do it.

- Garry J. Wise, Toronto

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

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Facebook, Publication Bans, and Canada's Youth Criminal Justice Act

While Canadian newspapers were precluded by the Youth Criminal Justice Act from publishing the names of the teen victim (and the two accused) in Toronto's first murder of 2008, the identities of all, apparently, were openly discussed on Facebook among the slain girl's mourning friends.

Immediately upon learning of her death, friends of the young victim established a Facebook group in her name and memory. According to press reports, certain posts to the group also identified the accused teens by name.

The murdered girl was subsequently identified by police, upon her parents' permission, as 14 year old Stefanie Rengel. Publication of the names of the two accused teens, a 17-year-old boy and 15-year-old girl, continues to be prohibited by the Act. They have been charged with first-degree murder.

Were these Facebook discussions by the victim's friends a violation of the Youth Criminal Justice Act?

Quite possibly.

A Facebook post with identifying information may well be a prohibited publication under the Act.

Let's take a look at excerpts from key provisions of the law:

Identity of offender not to be published
110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

....

Identity of victim or witness not to be published
111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

This illustrates yet another example of the significant legal implications that may turn on how the Courts ultimately come to view Facebook.

Is it private or public?

Is Facebook merely an extended network of closed, limited-access personal diaries, or alternatively, a connection hub facilitating the new media of social publication?

Beyond that, are all Facebook postings to be treated alike? Is an open, publicly-accessible Facebook group more akin to a publication than an individual user's page?

What if an individual user with lax privacy settings were to post a 'status update' like "John Doe wants Canada to know that the name of the teen victim in Toronto's first murder of 2008 was Stefanie Rengel, and we loved her and miss her."

To complicate the question even further, individual Facebook pages may now be indexed by Google, subject only to each user's self-established privacy levels, which can be set to limit search engines' access. Therefore, with low privacy levels, John Doe's posting might become available world-wide via searches extremely quickly.

It would be difficult to argue in this scenario, then, that such a status update, however well or privately-intentioned, would fall outside the umbrella of prohibited publications. Particularly if it did lead to a viral spread of this information online.

The Toronto Star looks at some of these challenges today in Gag orders in a Facebook age:

For 24 hours, newspapers, TV and radio stations were legally forbidden to release Stefanie Rengel's name, but on the Internet tributes to the slain teen – and the names of her accused killers – sprang up almost immediately, including on the social networking site Facebook.

..."It's a very good question if the people who post things on Facebook are actually breaking the YCJA," Peel Const. Wayne Patterson said. "I guess it all boils down to whether Facebook is eventually determined by somebody that it is a publication."

Alain Charette, media relations spokesperson for the Department of Justice, said the restriction "does apply to the Web, including Facebook ... generally publication covers a very wide spectrum."

"If it's about a violation, it's in police hands. If police get knowledge of that, it's for them to take it from there," he said.

- Garry J. Wise, Toronto

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

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Facebook Apologizes for Privacy Miscue

After a protracted and organized protest by Facebook users against Beacon, a new Facebook advertising application that many argued violated their privacy, the company backtracked yesterday, and agreed to alter the function to allow users to turn it off.

Facebook founder Mark Zuckerberg utilized the company's blog to apologize for Facebook's errors in developing the system and its clumsy handling of the Beacon launch.

Baltimore Sun reports:

SAN FRANCISCO - Beacon, the online advertising system that was supposed to light Facebook Inc.'s way to riches, has created such a dark storm of controversy that chief executive Mark Zuckerberg told users yesterday they could turn it off.

The sharp reversal in the face of huge public outcry is an attempt to restore the company's battered image with its more than 55 million users and the marketers trying to reach them.

Zuckerberg, Facebook's 23- year-old principal founder, posted a mea culpa on the social-networking site's blog.

"We've made a lot of mistakes building this feature, but we've made even more with how we've handled them," Zuckerberg wrote in notifying users that they could opt out completely. "We simply did a bad job with this release, and I apologize for it."

Facebook last week tweaked the Beacon system, saying it would no longer alert users' friends about what they do and buy on the site without their explicit permission.

The move came in response to a mass online protest led by political activist group MoveOn.org, which in two weeks organized more than 50,000 users. But the changes did not appease privacy experts who have been critical of Beacon.

Beacon is an online tracking tool that keeps tabs on the goods and services Facebook users buy or rent on partner sites such as Fandango.com and Blockbuster.com, then broadcasts those activities to friends on a news feed. Marketers hoped the system would put their brands in front of Facebook users.

Instead, users complained that the system was too intrusive and even ruined Christmas surprises when they saw what gifts their friends and family were buying.

For more on this story, see:

• Facebook publicly apologizes about privacy - San Jose Mercury News
• Facebook backpedals from new ad system - MSNBC
• Facebook Responds to Users Angry at Its New Adware - DailyTech, IL
• Facebook Beacon: A Cautionary Tale About New Media Monopolies - Digital Media Wire
• Facebook Loses Advertisers As Concerns Deepen - WebProNews
• Facebook Beacon Privacy Issues Worse Than Previously Thought? - Slashdot
• Report: Facebook Still Spying on Members - FOX News
• Beacon Ad System Also Tracks Non-Facebook Users - PC World
• Facebook relents on privacy violation - AMERICAblog

- Garry J. Wise, Toronto

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

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Facebook Users Petition for Facebook Reform on Ads

On November 7, 2007 Facebook announced through its blog that it has added “Social Ads” to the social networking site. According to the blog, Social Ads would bring about the following changes for Facebook users:

• You now have a way to connect with products, businesses, bands, celebrities and more on Facebook.
• Ads should be getting more relevant and more meaningful to you
• you now have the option to share actions you take on other sites with your friends on Facebook

In addition, the blog outlined that the following Facebook features would not change:

• Facebook will always stay clutter-free and clean.
• Facebook will never sell any of your information.
• You will always have control over your information and your Facebook experience.
• You will not see any more ads than you did before this.

In the spirit of Social Ads, approximately 3 weeks ago, Facebook launched “Beacon”, a program which allowed about 40 sites (including blockbuster.com, Travelocity.com and overstock.com) to send messages to friends of Facebook users informing them that their “friend” has made a transaction on their site.

As a result of their private transactions being published, some Facebook users began to experience an invasion of privacy and a feeling of loss of control over their information, an area that has always been of concern to Facebook users and one which was promised not to change in the applicable Facebook blog. In response to this growing concern, Moveon.org, a site which offers a “political voice” to concerned citizens” launched the following petition:

Sites like Facebook must respect my privacy. They should not tell my friends what I buy on other sites--or let companies use my name to endorse their products--without my explicit permission.

In the past 10 days, the petition has received over 50,000 signatures prompting a swift response with a promise for change from the Facebook camp.

Boston.com reports that a Facebook customer support representative “expressed facebook’s regrets” respecting the privacy invasion and loss of control that some users have felt. Facebook has further advised that they will implement a feature requiring users to provide explicit consent or an “opt –in” before information from the affiliated sites is passed along to Facebook friends.

No doubt, Facebook’s ongoing attempt to bring advertisement to the social networking site is an effort to bank on Facebook’s profitability which has previously been estimated at 15 billion. Facebook creator Mark Zukerberg and the Facebook team will now have to walk a fine line between nurturing the Facebook its users have grown to love, and making the site as profitable as Zuckerberg claims it is. With the quick growth of the Moveon.org petition, Facebook users have clearly alerted Facebook creators that any shift in the direction of profitability which conflicts with Facebook’s promises to its users will not be tolerated.

- Annie Noa Kenet, Toronto

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

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Canadian Lawyer looks at Social Networking

I was interviewed for Heather Capannelli article on social networking in the current issue of Canadian Lawyer magazine's Legal Report: Labour & Employment.

See her story, Marketing tool or time waster?

On a related note, Facebook has apparently overtaken Myspace in Web traffic

- Garry J. Wise, Toronto

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

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