Litigation Facebook Friending is going to become a major litigation due diligence issue in the coming years. In my January 8, 2010 post I created a legal definition for a Facebook Friend. In that post I defined a Facebook Friend as:
"someone whom is added to your network on a social media website. A "Facebook Friend" may or may not be someone with whom you have ever met or interacted with other than requesting that he or she be added to your network or that you confirmed that he or she be added to your network."
Neither Black's Law Dictionary nor Merriam-Webster's Online Dictionary has a definition for Litigation Facebook Friending. Therefore, I would like to create a legal definition for this activity. Litigation Facebook Friending occurs when a plaintiff or a defendant in litigation "encourages" a non-party to "Facebook Friend" one of the other litigants or a member(s) of the jury so an opposing litigant(s) can obtain inside information on another litigant(s) or a member of the jury.
If you know what your opposing litigant(s) and/or members of the jury are doing or thinking and they don't know that you have access to their Facebook or other social media website posts this can be a huge advantage. Does anyone remember John Grisham's novel and subsequent movie Runaway Jury?
In March 2009, the Philadelphia Bar Association Professional Guidance Committee provided an advisory opinion that stated that Facebook Friending opposing litigants may be considered misconduct. The opinion was not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. I believe there will be many contradictory opinions across the country on this matter and that the American Bar Association will ultimately need to resolve this issue. To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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Sunday, February 28, 2010
Tuesday, February 23, 2010
How Do You Solve A Problem Like Maria (Juror Facebooking)?
I was invited to speak at the University of Baltimore's Lunch Time Law Series on February 22, 2010 to discuss entertainment and social media law. The Lunch Time Law Series is a great program that invites members of the legal community to discuss current trends in the law.
During the program, the State v. Dixon case was brought up. I previously blogged about this case on December 30,2009, and on January 15, 2010. In this case, five jurors communicated with each other outside of the courtroom via Facebook. The defense team found out about this after a verdict had been entered but before sentencing. Whether this activity constituted juror misconduct enough to warrant
In my opinion, the temptation to access the Internet and social media sites is too great. Over the past several years, more and more people are ditching their landlines for smartphones, which allow quick and easy access to the Internet. Therefore, the courts have to put rules in place to safeguard the integrity of the jury system.
There are several different ways to do this. The first is to sequester all jurors, which frankly is impractical for many reasons, including, cost, and inconvenience.
The second possible solution would be to require prospective jurors to list all of their social media accounts on the juror questionnaire, including for example, Twitter name and password, and Facebook userid and password. This would enable court staff and the legal parties to not only screen for juror bias, but also to ensure that the impaneled jurors are not discussing the case in violation of court admonishments. In my opinion, this would intrude on a prospective juror’s right to privacy. The U.S. Constitution does not expressly protect one’s right to privacy. However, I believe it is inherent and forcing people to turn over this information may make people more inclined than they already are to try to avoid jury duty.
A third option, and the one that I believe is most viable is to require jurors sign a form stating that they agree not to discuss their case in any medium, including social media while they are impaneled. The form would include possible legal penalties if they disobey the directive.
On September 10, 2009, I blogged about how the San Francisco Court System is handling this issue.The U.S. Federal Courts recently weighed in on this problem and their response was to put forth a new model set of jury instructions: http://www.uscourts.gov/newsroom/2010/DIR10-018.pdf
Suggested jury instructions and admonishments for disobeying the rules are not enough. Real consequences are needed to take away the temptation to surf, post, blog, podcast, etc...There are no easy answers to "solving a problem like Maria (Juror Facebook)." However, a 21st century solution that addresses these issues and anticipates future challenges is needed. To learn more about these issues you may contact me at www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.Friday, February 5, 2010
Social Media Engagement Product Placement Contracts
Social media rights in professional sports is going to soon become one of the biggest revenue generating streams outside of a professional player's contract. It may take several years for this prediction to pan out but I guarantee that this will occur in the near future.
There are only a handful of professional athletes who are able to obtain major endorsement deals. The traditional form of endorsement deals where an athlete such as Tiger Woods is seen utilizing or standing next to a product is going to significantly change in the near future. Since the Tiger Woods scandal, companies are now going to be extremely careful about putting all of their eggs in one basket no matter how successful an athlete is in their chosen profession. In the Social Media Age an athlete's image can drastically change with one posted youtube video. Since the corporate world is generally risk averse, many companies will soon realize that a new endorsement paradigm will need to be created.
Traditional print, television, and radio advertising is dying a slow death. Internet banner ads and the pay per click model is also in transition. The wave of the future is what I would like to call "Engagement Product Placement." Engagement Product Placement occurs when a paid endorser such as a professional athlete is hired to engage in a conversation with his or her Facebook Fans, Twitter Followers, or other social media connections about a product or service. Chad Ochocinco, a wide receiver for the Cincinnati Bengals, has more than 186,000 Facebook Fans and almost 750,000 Twitter Followers. Given Chad Ochocinco's popularity just imagine the opportunities available.
The companies who hire paid endorsers and the attorneys for paid endorsers must be fully versed in the Federal Trade Commission's new guidelines before negotiating Engagement Product Placement Contracts. Paid endorsers need to hire attorneys who understand the technology and full power of social media to account for the permutations that exist in this type of contract.
In the Social Media Age attorneys need to find creative ways to address all of the business and legal issues that accompany social media usage. To learn more about these issues you may contact me at www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
There are only a handful of professional athletes who are able to obtain major endorsement deals. The traditional form of endorsement deals where an athlete such as Tiger Woods is seen utilizing or standing next to a product is going to significantly change in the near future. Since the Tiger Woods scandal, companies are now going to be extremely careful about putting all of their eggs in one basket no matter how successful an athlete is in their chosen profession. In the Social Media Age an athlete's image can drastically change with one posted youtube video. Since the corporate world is generally risk averse, many companies will soon realize that a new endorsement paradigm will need to be created.
Traditional print, television, and radio advertising is dying a slow death. Internet banner ads and the pay per click model is also in transition. The wave of the future is what I would like to call "Engagement Product Placement." Engagement Product Placement occurs when a paid endorser such as a professional athlete is hired to engage in a conversation with his or her Facebook Fans, Twitter Followers, or other social media connections about a product or service. Chad Ochocinco, a wide receiver for the Cincinnati Bengals, has more than 186,000 Facebook Fans and almost 750,000 Twitter Followers. Given Chad Ochocinco's popularity just imagine the opportunities available.
The companies who hire paid endorsers and the attorneys for paid endorsers must be fully versed in the Federal Trade Commission's new guidelines before negotiating Engagement Product Placement Contracts. Paid endorsers need to hire attorneys who understand the technology and full power of social media to account for the permutations that exist in this type of contract.
In the Social Media Age attorneys need to find creative ways to address all of the business and legal issues that accompany social media usage. To learn more about these issues you may contact me at www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.