As a Baltimore native, I keep an active eye on all things Baltimore. I am a fan of the Baltimore Ravens, Baltimore Orioles, Barry Levinson, and John Waters. However, I am very disappointed in Baltimore's recently convicted Mayor Sheila Dixon.
Mayor Dixon was convicted earlier this month of embezzling retail gift cards that were meant for Baltimore's poor. Mayor Dixon's conviction was even discussed on Jay Leno's show. Despite Mayor Dixon's conviction, she has refused to step down and her highly respected legal team is working to overturn her conviction.
According to the Baltimore Sun, one of Mayor Dixon's legal arguments to overturn her conviction pertains to Facebook friending. It appears that several of the jurors friended each other on Facebook during the trial. This is a novel argument and I am not aware of any on point case law regarding this issue. During the past couple of years, there have been several publicized legal matters where the participants have Facebook friended each other. However, this is the first time that a high-profile case has had to deal with whether Facebook friending by jurors during a trial is considered misconduct. If Facebook friending is ruled to be juror misconduct it may be possible for Mayor Dixon's conviction to be overturned.
On September 10, 2009, I blogged about San Francisco Superior Court's court rules that go into effect in the new year regarding social media usuage by jurors. At that time, I stated that these rules should be implemented across the country. This case demonstrates the need for such rules.
A hearing is scheduled for January 6, 2010 regarding potential juror misconduct relating to Mayor Dixon's trial and I am interested in how the court will rule. Facebook friending is just one of the many social media law issues that the courts will need to address in the coming decade.
I wish all of my readers a happy and healthy new year and new decade.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, December 30, 2009
Wednesday, December 23, 2009
Social Media and the Sean Goldman Kidnapping and Custody Case
Jeff Rossen of NBC News has been providing real time Twitter updates for the Sean Goldman kidnapping and custody case. For those who have not heard about this case I would like to provide a brief synopsis. David Goldman, a New Jersey resident married a Brazilian, Bruna Bianchi in New Jersey in 1999. They had a son, Sean Goldman, born in New Jersey in 2000. On June 16, 2004, Ms. Bianchi and Sean left to visit her family in Brazil on a planned vacation. After arriving in Brazil, Ms. Bianchi called her husband to tell him that their marriage was over, their son Sean would not be returning to the United States, and that her husband must sign over legal custody if he ever wanted to see his son again.
David Goldman refused to relinguish his legal rights and started the legal fight to bring his son home. International law has been clearly on Mr. Goldman's side from the begining. However, Ms. Bianchi remarried a politically connected Brazilian attorney who just happens to specialize in international family law. Ms. Bianchi and her family have used every possible legal maneuver to keep Mr. Goldman from being reunited with his son. During this time, Mr. Goldman has had little contact with his son.
About a year and a half ago, Ms. Bianchi died while giving birth. Despite this tragedy, her family continued the legal fight and refused to return Sean to his father. Due to the power of traditional media, social media, and excellent public relations, the Obama administration along with several U.S. Senators and Congressmen have gotten involved with the case to strongly urge Brazil to follow international law which requires Sean to be returned to his father.
The Chief Justice of Brazil yesterday tweeted his decision to return Sean to his father and according to a report earlier today, Mr. Goldman's late wife's family will not appeal the Chief Justice's decision. Therefore, Mr. Goldman and his son could be reunited later today.
The use of social media is exploding and changing the way our entire society communicates. Even though the U.S. legal system is usually slow to adapt to change it will eventually have to embrace social media.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
David Goldman refused to relinguish his legal rights and started the legal fight to bring his son home. International law has been clearly on Mr. Goldman's side from the begining. However, Ms. Bianchi remarried a politically connected Brazilian attorney who just happens to specialize in international family law. Ms. Bianchi and her family have used every possible legal maneuver to keep Mr. Goldman from being reunited with his son. During this time, Mr. Goldman has had little contact with his son.
About a year and a half ago, Ms. Bianchi died while giving birth. Despite this tragedy, her family continued the legal fight and refused to return Sean to his father. Due to the power of traditional media, social media, and excellent public relations, the Obama administration along with several U.S. Senators and Congressmen have gotten involved with the case to strongly urge Brazil to follow international law which requires Sean to be returned to his father.
The Chief Justice of Brazil yesterday tweeted his decision to return Sean to his father and according to a report earlier today, Mr. Goldman's late wife's family will not appeal the Chief Justice's decision. Therefore, Mr. Goldman and his son could be reunited later today.
The use of social media is exploding and changing the way our entire society communicates. Even though the U.S. legal system is usually slow to adapt to change it will eventually have to embrace social media.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, December 14, 2009
Supreme Court To Hear Potentially Groundbreaking Social Media Law Case
The U.S. Supreme Court has agreed to hear a Federal appeals court case from California that may lay the groundwork for determining whether an employee has an expectation of privacy when sending a personal text message and other personal communication from a work computer or other work issued property in the Social Media Age. The case, City of Ontario, California, et al., Petitioners v. Jeff Quon, et al. (No. 08-1332) may enable the Supreme Court to determine when and if an employer has the right to monitor any of the following personal accounts accessed at work: a personal email account, a Facebook account, or a Twitter feed.
Police sergeant Jeff Quon sued the City of Ontario, CA for violating his workplace privacy rights. Quon claimed that the City conducted a constitutionally banned unreasonable search by reviewing his text messages, despite those messages being sent from a city owned and paid for pager account. Notwithstanding Quon's claim, the trial court ruled that the City of Ontario had not violated his privacy. Quon successfully appealed to the U.S. Court of Appeals, 9th Circuit which reversed the trial court's decision. The City of Ontario has since appealed to the U.S. Supreme Court claiming that Quon did not have an expectation of privacy in his communications.
In my opinion, the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review any electronic communication that is sent via an employer owned account. Email, text messaging, and pagers have been commonly used in the workplace for more than 15 years and employees know or should know that they have no expectation of privacy when sending messages through an employer owned account. An employee should only have an expectation of privacy when communicating on his or her own personal computer, personal cell phone, or personal smartphone.
Police sergeant Jeff Quon sued the City of Ontario, CA for violating his workplace privacy rights. Quon claimed that the City conducted a constitutionally banned unreasonable search by reviewing his text messages, despite those messages being sent from a city owned and paid for pager account. Notwithstanding Quon's claim, the trial court ruled that the City of Ontario had not violated his privacy. Quon successfully appealed to the U.S. Court of Appeals, 9th Circuit which reversed the trial court's decision. The City of Ontario has since appealed to the U.S. Supreme Court claiming that Quon did not have an expectation of privacy in his communications.
Interestingly, Quon signed a form that acknowledged that his personal communications on his work-issued electronic devices would not be private. Despite signing the form, he utilized a work issued pager to send non-work related messages, including messages that some have deemed sexually explicit.
In general, an employer has the right to monitor any electronic communications accessed via employer owned equipment. Internet and Social Media Law is still evolving and the courts have begun to recognize there may be a distinction when an employee accesses personal email and social media accounts utilizing an employer's property.In my opinion, the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review any electronic communication that is sent via an employer owned account. Email, text messaging, and pagers have been commonly used in the workplace for more than 15 years and employees know or should know that they have no expectation of privacy when sending messages through an employer owned account. An employee should only have an expectation of privacy when communicating on his or her own personal computer, personal cell phone, or personal smartphone.
The case is scheduled to be argued in Spring 2010 with a Summer 2010 decision likely.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, December 10, 2009
Social Media, Poor Choices, and Bad Advice Is Destroying Tiger's Ability to Recover From TigerSexgate
What is Tiger's legal, social media, and public relations team doing to stop the bleeding? So far, Team Tiger's strategy has been to duck and cover, and hope for the cavalry to arrive sooner rather than later. As General Custer found out, the cavalry doesn't always come in time to save you. The entire media and social media world, including the New York Post, US Magazine, and The Today Show, are circling and Tiger's response has been to go into seclusion and avoid everyone and everything in the hopes that TigerSexgate will somehow go away.
As I stated in a previous post, Tiger must be proactive during this time of crisis. Unfortunately, Team Tiger is in paralysis and unable to create an effective crisis response. On the home page of http://www.tigerwoods.com/ it should state in big bold letters "I am Sorry" and Tiger should personally state in a video posted on his website that he is sorry for the all of the pain he has caused his wife and family, he is sorry to his fans, the public, and to his sponsors and that he will work to regain their trust. The video should be released to every social media website to get his message across. As of this writing, Tiger and his website are trying to ignore TigerSexgate and this strategy is failing.
Is Team Tiger taking direction from Tiger, his personal attorney(s), his agent(s), or his publicist(s)? Whomever is the general in this fiasco must be replaced immediately. If Tiger is making the decision to stay out of the spotlight he needs to summon the courage to face the public and come clean. Leaders and role models address criticism head on and personally take full responsibility for their actions. So far, Tiger has failed to live up to the image that Team Tiger has created. This situation reminds me of the scene in The Wizard of Oz when the curtain on the Wizard is pulled back and there is nothing there but a man, not a "Wizard."
It has been approximately two weeks, and I am very surprised that his sponsors that include: Accenture, Electronic Arts, General Motors, Gillette, Pepsi, Proctor and Gamble, and Tag Heuer have been generally quiet since the story broke. If I was the legal counsel for any of Tiger's sponsors I would be reviewing the endorsement contract that my company has with Tiger and analyzing the "morals clause" that I assume was inserted in each contract. A contract morals clause provides a company the ability to terminate the services of an endorser if the endorser engages in activity that is inconsistent with a company's public image.
If the morals clause is properly drafted, I would advise my client to drastically redraft the endorsement contract or sever all ties with Tiger since my client is paying for an image that no longer exists. Companies want to be associated with people who are at the top of their profession, have the right personal image, and who know how to react when either their professional or personal image is under attack since an attack on the endorser is also an attack on the company's brand. Tiger no longer has the image companies desire and his ostrich like "head in the sand" reaction to this crisis demonstrates he is out of touch with the customers whom he is paid to attract.
When dealing with high profile clients, an attorney should ask his client(s) about any "possible future challenges" that may be on the client's radar. Sometimes the client will not be forthcoming, other times the client may provide this information. Due to the nature of the attorney-client relationship an attorney should make the client feel comfortable enough to provide this type of information so an attorney may be proactive in preventing a public relations nightmare that may have corporate and legal consequences.
Immediately after reports of Tiger's multiple infidelities become public, Tiger's legal team should have sprung into action. Tiger's legal team should have had the contact information for each woman with whom he had an inappropriate relationship with so they could negotiate a settlement to keep the relationship a private matter. In particular, Tiger should have worked with his legal team to list in order the women who have the most "evidence" of a relationship to the least amount of evidence. The women with whom he "sexted" with, left voice mails with, emailed with, or left any other possible evidence (Think Monica Lewinsky's Blue Dress), should have been targeted first. These women should have been offered appropriate settlements with iron clad confidentiality agreements.
Tiger should have followed Michael Jackson's lead and spent the money necessary to keep his image intact. Michael Jackson's image took a hit but he was never convicted of child molestation. Michael Jackson's settlement with his accuser(s) allowed him to keep his freedom and to go back to making music. Unfortunately, he tragically passed away earlier this past year before he was able to make another comeback.
Tiger's "transgressions" will not put him jail. However, it may forever change his relationship with his wife and family, eliminate hundreds of millions of dollars in marketing opportunities, destroy his public persona forever, and may affect his ability to focus on playing golf. I thought Tiger was a lock to easily surpass Jack Nicklaus on the all-time major wins list. After watching his response to TigerSexgate, I believe that Tiger will be lucky to win one more major. I hope he proves me wrong, but at this point in time I doubt it.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
As I stated in a previous post, Tiger must be proactive during this time of crisis. Unfortunately, Team Tiger is in paralysis and unable to create an effective crisis response. On the home page of http://www.tigerwoods.com/ it should state in big bold letters "I am Sorry" and Tiger should personally state in a video posted on his website that he is sorry for the all of the pain he has caused his wife and family, he is sorry to his fans, the public, and to his sponsors and that he will work to regain their trust. The video should be released to every social media website to get his message across. As of this writing, Tiger and his website are trying to ignore TigerSexgate and this strategy is failing.
Is Team Tiger taking direction from Tiger, his personal attorney(s), his agent(s), or his publicist(s)? Whomever is the general in this fiasco must be replaced immediately. If Tiger is making the decision to stay out of the spotlight he needs to summon the courage to face the public and come clean. Leaders and role models address criticism head on and personally take full responsibility for their actions. So far, Tiger has failed to live up to the image that Team Tiger has created. This situation reminds me of the scene in The Wizard of Oz when the curtain on the Wizard is pulled back and there is nothing there but a man, not a "Wizard."
It has been approximately two weeks, and I am very surprised that his sponsors that include: Accenture, Electronic Arts, General Motors, Gillette, Pepsi, Proctor and Gamble, and Tag Heuer have been generally quiet since the story broke. If I was the legal counsel for any of Tiger's sponsors I would be reviewing the endorsement contract that my company has with Tiger and analyzing the "morals clause" that I assume was inserted in each contract. A contract morals clause provides a company the ability to terminate the services of an endorser if the endorser engages in activity that is inconsistent with a company's public image.
If the morals clause is properly drafted, I would advise my client to drastically redraft the endorsement contract or sever all ties with Tiger since my client is paying for an image that no longer exists. Companies want to be associated with people who are at the top of their profession, have the right personal image, and who know how to react when either their professional or personal image is under attack since an attack on the endorser is also an attack on the company's brand. Tiger no longer has the image companies desire and his ostrich like "head in the sand" reaction to this crisis demonstrates he is out of touch with the customers whom he is paid to attract.
When dealing with high profile clients, an attorney should ask his client(s) about any "possible future challenges" that may be on the client's radar. Sometimes the client will not be forthcoming, other times the client may provide this information. Due to the nature of the attorney-client relationship an attorney should make the client feel comfortable enough to provide this type of information so an attorney may be proactive in preventing a public relations nightmare that may have corporate and legal consequences.
Immediately after reports of Tiger's multiple infidelities become public, Tiger's legal team should have sprung into action. Tiger's legal team should have had the contact information for each woman with whom he had an inappropriate relationship with so they could negotiate a settlement to keep the relationship a private matter. In particular, Tiger should have worked with his legal team to list in order the women who have the most "evidence" of a relationship to the least amount of evidence. The women with whom he "sexted" with, left voice mails with, emailed with, or left any other possible evidence (Think Monica Lewinsky's Blue Dress), should have been targeted first. These women should have been offered appropriate settlements with iron clad confidentiality agreements.
Tiger should have followed Michael Jackson's lead and spent the money necessary to keep his image intact. Michael Jackson's image took a hit but he was never convicted of child molestation. Michael Jackson's settlement with his accuser(s) allowed him to keep his freedom and to go back to making music. Unfortunately, he tragically passed away earlier this past year before he was able to make another comeback.
Tiger's "transgressions" will not put him jail. However, it may forever change his relationship with his wife and family, eliminate hundreds of millions of dollars in marketing opportunities, destroy his public persona forever, and may affect his ability to focus on playing golf. I thought Tiger was a lock to easily surpass Jack Nicklaus on the all-time major wins list. After watching his response to TigerSexgate, I believe that Tiger will be lucky to win one more major. I hope he proves me wrong, but at this point in time I doubt it.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, December 2, 2009
Social Media Has Forever Tarnished Tiger Woods' Image
Tiger Woods is the most popular and recognizable professional athlete on the planet and the highest paid athlete and pitchman. However, his purported "transgressions" during the past several years that have recently come to light and his response or initial lack thereof to the rumors concerning his extracurricular activities may have permanently tarnished his marketability.
Tiger's image has been very tightly controlled for many years and he has allowed his great skills on the golf greens to do most of his talking. Tiger's car accident over the Thanksgiving holiday weekend combined with published reports that he has been unfaithful to his wife have forever changed his image. From a legal perspective, Tiger's refusal to speak with police or provide a statement regarding the accident was his best move. However, from a public relations perspective Tiger's initial silence concerning the car accident and his alleged "transgressions" have created a feeding frenzy throughout the social media world.
Everybody makes mistakes. Our country is very forgiving and in the past when our heroes have fallen down and they have worked to repair the damage, the public has accepted them with open arms. A prime example of this is how former President Bill Clinton has bounced back since the Monica Lewinsky scandal. Even though President Clinton had to deal with the 24 hour news cycle, cable news, and the Internet (albeit a much less robust one than we have today), he did not have to deal with the power of social media.
Social media has changed the game. Due to a multitude of news websites, blogs, podcasts, etc... there is no escaping a story. Unfortunately, Tiger's handlers still do not understand the power of social media and how to respond to legal issues that they encounter in the Social Media Age. This is evidenced by Tiger's 11/29/2009 statement concerning his car accident and his 12/02/2009 comments regarding his personal indiscretions. Neither statement provides a clear explanation of what has truly happened, which the public and many of Tiger's fans and supporters want.
From a legal perspective, the less said about a legal matter the better. However, from a public relations standpoint, it is usually advisable to defuse a story by getting out in front of it by either acknowledging it or providing evidence to debunk it. An excellent example of successful public relations is how Meredith Baxter, aka Elyse Keaton of Family Ties fame handled the story concerning her sexuality. Ms. Baxter had been seen on a lesbian cruise and immediate questions concerning her sexuality were raised. Ms. Baxter got wind that a tabloid was going to "out" her so she went on The Today Show to out herself and take control of her story. Ms. Baxter's proactiveness destroyed the sensationalism of the story.
A second example of how to successfully handle a sex scandal is the way late night talk show host David Letterman reacted during his recent sex scandal. Mr. Letterman admitted the sexual affairs on his show. In general, Mr. Letterman has so far come out relatively unscathed. The only criticism of the manner in which this scandal has been handled is that CBS has refused to post Mr. Letterman's admission on CBS.com and it has used its legal muscle to force Youtube.com to remove it on the basis of copyright infringement. Despite these actions, unauthorized copies of Mr. Letterman's public apology are easy to find on the Internet.
In contrast, Tiger has tried to ignore his current situation and it appeared that he hoped it would all blow over. There is a good possibility that it will no longer be in the news cycle in a couple of weeks. However, social media will keep it alive on the Internet. If Tiger would have come clean a few days ago and went on camera and stated something along the lines that he was upset when he left his house and this caused his car accident and that he has been unfaithful to his wife and he is sorry for the pain he caused the story would be over. However, refusing to come clean early in the news cycle of the story has only fueled the fire and allowed for tabloid fodder. The longer Tiger waits to come clean, the more he tarnishes his well-crafted image.
Therefore, due to the power of social media it is important to hire a legal and public relations team that understands the legal, business, and public relations consequences of each possible course of action. In my opinion, Tiger needs to reevaluate his legal and public relations strategy to incorporate the new reality of the Social Media Age.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tiger's image has been very tightly controlled for many years and he has allowed his great skills on the golf greens to do most of his talking. Tiger's car accident over the Thanksgiving holiday weekend combined with published reports that he has been unfaithful to his wife have forever changed his image. From a legal perspective, Tiger's refusal to speak with police or provide a statement regarding the accident was his best move. However, from a public relations perspective Tiger's initial silence concerning the car accident and his alleged "transgressions" have created a feeding frenzy throughout the social media world.
Everybody makes mistakes. Our country is very forgiving and in the past when our heroes have fallen down and they have worked to repair the damage, the public has accepted them with open arms. A prime example of this is how former President Bill Clinton has bounced back since the Monica Lewinsky scandal. Even though President Clinton had to deal with the 24 hour news cycle, cable news, and the Internet (albeit a much less robust one than we have today), he did not have to deal with the power of social media.
Social media has changed the game. Due to a multitude of news websites, blogs, podcasts, etc... there is no escaping a story. Unfortunately, Tiger's handlers still do not understand the power of social media and how to respond to legal issues that they encounter in the Social Media Age. This is evidenced by Tiger's 11/29/2009 statement concerning his car accident and his 12/02/2009 comments regarding his personal indiscretions. Neither statement provides a clear explanation of what has truly happened, which the public and many of Tiger's fans and supporters want.
From a legal perspective, the less said about a legal matter the better. However, from a public relations standpoint, it is usually advisable to defuse a story by getting out in front of it by either acknowledging it or providing evidence to debunk it. An excellent example of successful public relations is how Meredith Baxter, aka Elyse Keaton of Family Ties fame handled the story concerning her sexuality. Ms. Baxter had been seen on a lesbian cruise and immediate questions concerning her sexuality were raised. Ms. Baxter got wind that a tabloid was going to "out" her so she went on The Today Show to out herself and take control of her story. Ms. Baxter's proactiveness destroyed the sensationalism of the story.
A second example of how to successfully handle a sex scandal is the way late night talk show host David Letterman reacted during his recent sex scandal. Mr. Letterman admitted the sexual affairs on his show. In general, Mr. Letterman has so far come out relatively unscathed. The only criticism of the manner in which this scandal has been handled is that CBS has refused to post Mr. Letterman's admission on CBS.com and it has used its legal muscle to force Youtube.com to remove it on the basis of copyright infringement. Despite these actions, unauthorized copies of Mr. Letterman's public apology are easy to find on the Internet.
In contrast, Tiger has tried to ignore his current situation and it appeared that he hoped it would all blow over. There is a good possibility that it will no longer be in the news cycle in a couple of weeks. However, social media will keep it alive on the Internet. If Tiger would have come clean a few days ago and went on camera and stated something along the lines that he was upset when he left his house and this caused his car accident and that he has been unfaithful to his wife and he is sorry for the pain he caused the story would be over. However, refusing to come clean early in the news cycle of the story has only fueled the fire and allowed for tabloid fodder. The longer Tiger waits to come clean, the more he tarnishes his well-crafted image.
Therefore, due to the power of social media it is important to hire a legal and public relations team that understands the legal, business, and public relations consequences of each possible course of action. In my opinion, Tiger needs to reevaluate his legal and public relations strategy to incorporate the new reality of the Social Media Age.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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