Peter Vogel
Pew Research reports that more than 65 percent of all adults used social media every day in 2011 — up from 61 percent in 2010. This expansive use of social media has created new sources of evidence. So for lawyers to best assist their clients they must better understand social media and how their clients share information on the internet.
You don't need to devote hours every day to posting tweets and commenting on Facebook. But to get a better understanding of how social media works, you should spend some amount of time creating a Facebook page, Twitter account, and LinkedIn connections and learn to communicate via text messaging as well as use whatever other web tools your clients use.
Before you begin these activities, read the ToS and the privacy policy for each site. Yes, really. It's probably an accurate guess that only about 1 percent of internet users read either.
What you will learn from the ToS should inform about how much you might want to share on that site. As a general rule, do not include more on your social media home pages about yourself than you are comfortable including on your current resume, on your own website, or the bio page on your firm's website.
In other words, you do not need to explain that you really like pizza or bagels or Maseratis, or other personal information that some people feel compelled to post. Nor do you need to get involved in political debate about issues of the day or candidates for office.
Keep in mind that you should not post Tweets — or send messages through those sites — that you would not want anyone other than the recipient to see. These messages are neither private nor protected, even though they appear to be, and worst of all, messages on the internet are permanent.
The more you understand ToS, the better equipped you will be to do your job, because almost every business operating today has an internet presence. So the more you understand the business operations of the internet website you use, the better you will be able to help clients with their internet business issues, whether in transactions or litigation.
As a matter of course, many businesses routinely review other companies' ToS in their market, to get an idea what terms they should have on their own websites. While on the surface this makes sense, it may not really be a good business strategy. For instance, the most popular search engines are offered by Google, Microsoft Bing, AOL, and Yahoo, but each brand has very different terms in their ToS. Why? Because each company has different business and ownership issues. A business should not rely exclusively on the ToS of a particular website as a model of what provisions that they should include in their own ToS. Lawyers can help their clients understand the legal risks associated with their businesses, and consider what terms should be included.
PRIVACY
Unlike ToS, where there are few, if any, statutes governing them, global privacy laws vary widely. For instance, in the U.S., internet privacy is regulated by the Federal Trade Commission, and websites need not have a privacy policy unless children under 13 are users. But if there is a privacy policy, then the FTC will expect the website owner to adhere to the privacy policy it offers.
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