The International Olympic Committee (IOC) recently published its Social Media Policy for the 2012 London Olympic Games. According to the just released policy, "the IOC encourages all social media and blogging activity at the Olympic Games as long as it is not for commercial and/or advertising purposes."
At first glance, the policy appears to be straight forward. It clearly states that its main goal is to protect the intellectual property rights of its commercial and/or advertising partners. I have no problem with the IOC trying to protect its intellectual property interests and the interests of its business partners since billions of dollars are paid for broadcast rights and millions are paid by worldwide partners to be associated with each Olympics.
Some of the sections I thought may be worth more discussion include:
Section 2 of the policy needs to be clarified because it states, "any such postings, blogs or tweets should be in a first-person, diary type format and should not be in the role of a journalist - i.e. they must not report on competition or comment on the activities of other participants or accredited persons..." If a participant makes comments about the competition or the activities of other participants to an accredited member of the media is this within the guidelines? Will the IOC allow this type of information only to be provided to the accredited media but not on a personal social media account? How closely will the IOC enforce this policy?
Section 4 of the Policy appears to try to protect the exclusivity and value of the Olympic broadcasting rights. It states, "Participants and other accredited persons cannot post any video and/or audio of the events, competitions or any other activities which occur at Olympic Venues. Such video and/or audio must only be for personal use and must not be uploaded and/or shared to a posting, blog or tweet on any social media platforms, or to a website." I understand the need to try to protect Olympic broadcasting rights. However, I think it will be difficult for the IOC to permanently ban personal video/audio taken by participants and accredited persons from ever being uploaded onto a social media platform.
Sections 7, 9, and 13 focuses on protecting the IOC's intellectual property. As I stated above, since Olympic partners have paid millions or billions to be associated with the Games they should be provided some type of protection for their investments.
Section 8 discusses social media advertising and sponsorships. Participants and accredited persons may need to have their legal counsel review all of their social media accounts to ensure compliance. Before the Olympics start a thorough review of all active and inactive social media profiles should be completed.
Section 11 discusses liability for social media posts. It states, "they [participants] can be held personally liable for any commentary and/or material deemed to be defamatory, obscene or proprietary." Who is to decide the definition of obscene? As I previously posted, the United States Supreme Court just reaffirmed that in the United States "disgust is not a valid basis for restricting expression." What is the definition of obscene? At the 2010 Winter Olympics, snowboarder Scotty Lago was kicked out of the Games due to photos of him that others had uploaded. Therefore, I believe it should be left up to each National Olympic Committee to determine the definition of obscene since each country may have slightly different standards.
In general, the IOC's Social Media Policy appears to be a good starting point for discussion. However, the points I mention above need to be addressed before the Games begin to lessen the likeliehood that social media compliance misunderstandings may occur.
To learn more about the IOC's Social Media Policy you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, June 28, 2011
The NCAA, Social Media Monitoring, Censorship, the First Amendment, the Supreme Court, and Video Games
Last week, the NCAA may have created a major legal liability quagmire for its member institutions when it alleged that the University of North Carolina failed to monitor the social media activity of its football players.
Social Media/Social Networking Monitoring may lead to Social Media Censorship. Social Media Censorship by NCAA institutions may be gaining acceptance in some schools. According to the Washington Post, the University of Maryland (UMD) may be actively monitoring and regulating the speech of the members of its football team. It appears that UMD is monitoring defensive lineman A.J. Francis' Twitter account. Does Maryland require all of its athletes to turn over their social media account names to their compliance staff? Or, is it only the men's football team?
Could there be a Title IX or a 14th Amendment Equal Protection clause violation if Maryland is only monitoring the men's football team and not treating other teams and/or genders equally? Are only a few athletes of the men's football team being singled out? How did Maryland obtain A.J. Francis' Twitter account information? Did Maryland's compliance department require A.J. Francis to provide it his social media account user names in order to continue to be on the football team and/or receive academic aid?
According to the Clarion Ledger, University of Mississippi signee C.J. Johnson deleted his personal Twitter account after speaking with the Ole Miss athletic department staff. Ole Miss has publicly stated that it did not force C.J. Johnson to close his Twitter account. C.J. Johnson's Twitter activity may be objectionable to some people and it may be best for him to stop tweeting for the time being; however, what if a school gives a student an ultimatum: stop your social media activity or lose your scholarship and/or be kicked out of school?
What if the University of Maryland told Larry David (Seinfeld Co-Creator), Jim Henson (Creator of the Muppets), David Simon (Co-Writer of The Wire), Sergey Brin (Co-Founder Google), Steny Hoyer (Former House Majority Leader), Carl Bernstein (Former Washington Post Watergate Journalist), etc... or the University of Mississippi told William Faulkner (Author), John Grisham (Author), Sheppard Smith (Host of the Fox Report), Gerald McRaney (Actor), and Bill Parsons (Director of NASA's John F. Kennedy Space Center) that they should stop publicly expressing their personal and/or political views while they attended their respective schools? If a public college and/or university starts regulating what its student-athletes express on social media what will stop it from trying to regulate what other members of the student body state online?
The NCAA 2010-2011 Division I Manual does not appear to discuss Social Media/Social Networking Monitoring and/or censorship so I am not sure how public schools thinks that it is acceptable to monitor and then censor its student-athletes.
In Brown v. Entertainment Merchants Association, the Supreme Court in a 7-2 majority recently ruled that "disgust is not a valid basis for restricting expression." Justice Scalia wrote, "[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)....That suffices to confer First Amendment protection.” Since video games are now constitutionally protected forms of expressive behavior will the First Amendment protect most types of social media activity no matter how offensive unless they defame and/or violate other areas of the law?
Any school that deploys a social media monitoring service to monitor its student-athletes may want to reevaluate their policy. Colleges and universities that utilize social media monitoring and receive government funding may also be creating further unanticipated legal issues. As I have stated over and over, academic institutions should be educating their students about social media and not monitoring and censoring them.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Social Media/Social Networking Monitoring may lead to Social Media Censorship. Social Media Censorship by NCAA institutions may be gaining acceptance in some schools. According to the Washington Post, the University of Maryland (UMD) may be actively monitoring and regulating the speech of the members of its football team. It appears that UMD is monitoring defensive lineman A.J. Francis' Twitter account. Does Maryland require all of its athletes to turn over their social media account names to their compliance staff? Or, is it only the men's football team?
Could there be a Title IX or a 14th Amendment Equal Protection clause violation if Maryland is only monitoring the men's football team and not treating other teams and/or genders equally? Are only a few athletes of the men's football team being singled out? How did Maryland obtain A.J. Francis' Twitter account information? Did Maryland's compliance department require A.J. Francis to provide it his social media account user names in order to continue to be on the football team and/or receive academic aid?
According to the Clarion Ledger, University of Mississippi signee C.J. Johnson deleted his personal Twitter account after speaking with the Ole Miss athletic department staff. Ole Miss has publicly stated that it did not force C.J. Johnson to close his Twitter account. C.J. Johnson's Twitter activity may be objectionable to some people and it may be best for him to stop tweeting for the time being; however, what if a school gives a student an ultimatum: stop your social media activity or lose your scholarship and/or be kicked out of school?
What if the University of Maryland told Larry David (Seinfeld Co-Creator), Jim Henson (Creator of the Muppets), David Simon (Co-Writer of The Wire), Sergey Brin (Co-Founder Google), Steny Hoyer (Former House Majority Leader), Carl Bernstein (Former Washington Post Watergate Journalist), etc... or the University of Mississippi told William Faulkner (Author), John Grisham (Author), Sheppard Smith (Host of the Fox Report), Gerald McRaney (Actor), and Bill Parsons (Director of NASA's John F. Kennedy Space Center) that they should stop publicly expressing their personal and/or political views while they attended their respective schools? If a public college and/or university starts regulating what its student-athletes express on social media what will stop it from trying to regulate what other members of the student body state online?
The NCAA 2010-2011 Division I Manual does not appear to discuss Social Media/Social Networking Monitoring and/or censorship so I am not sure how public schools thinks that it is acceptable to monitor and then censor its student-athletes.
In Brown v. Entertainment Merchants Association, the Supreme Court in a 7-2 majority recently ruled that "disgust is not a valid basis for restricting expression." Justice Scalia wrote, "[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)....That suffices to confer First Amendment protection.” Since video games are now constitutionally protected forms of expressive behavior will the First Amendment protect most types of social media activity no matter how offensive unless they defame and/or violate other areas of the law?
Any school that deploys a social media monitoring service to monitor its student-athletes may want to reevaluate their policy. Colleges and universities that utilize social media monitoring and receive government funding may also be creating further unanticipated legal issues. As I have stated over and over, academic institutions should be educating their students about social media and not monitoring and censoring them.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, June 22, 2011
Does the NCAA Understand the Legal Implications of Social Media Montoring?
Does the NCAA understand the legal implications of social media monitoring? The Associated Press reported that the University of North Carolina (UNC) has been accused of unethical conduct, and failure to monitor its players. In particular, the NCAA is accusing UNC with failure to monitor its student-athletes' social media activity.
On page 21 of the Notice of Allegations against UNC (Case No. M357, June 21, 2011) 9. b. it states, "[i]n February through June 2010, the institution [UNC] did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program, which delayed the institution's discovery and compounded the provision of impermissible benefits in Allegation Nos. 4-a, 4-c, 4-d and 4-e." In 9. g. the NCAA is requesting, "[c]opies of materials posted on Twitter by football student-athletes..." Furthermore, in 9. h. the NCAA is requesting "[a] statement summarizing information reported by ______(left blank) regarding the institution's efforts to monitor the social networking activity of football student-athletes.
As I previously stated on June 9, 2011, social media monitoring is a futile effort that wastes resources since crowdsouring is already performing this service for free. If the NCAA is now going to require its members to actively monitor its student-athletes' social media accounts this will open up a Pandora's box.
Will the NCAA soon require each of its member schools to have a "minder" follow their student-athletes to listen in on every conversation, phone call; and review every email, text message, electronic communication, etc... of their student-athletes? Will the NCAA soon require every student-athlete list all of their social media accounts to maintain eligibility? What if a student-athlete changes his screen name or deletes a social media account and opens a new one? Will the student-athlete be forced to notify their school's compliance office within 24 hours of the change? If a student-athlete forgets to report a social media account change to the compliance office will the student-athlete automatically become ineligible and/or the member school be found in violation of NCAA rules? If so, what will be the punishment?
Will there be strict liability for failure to report? What if a student-athlete forgets or refuses to list an account due to privacy and/or political speech issues? Will a student-athlete lose his scholarship due to a refusal to turn over his social media account information? What if a student-athletes' Facebook wall is private and/or his Tweets protected? What if someone hacks into a student athletes' account and creates posts that may be rules infractions? What if a student-athlete has a rogue account that is not reported to its compliance office? Will the NCAA require its members to track down every possible unreported student-athlete social media account and/or post?
Would the NCAA strip a national championship from a member school for failure to properly report all of their student-athletes' social media accounts and/or ban students from participating in collegiate sports for refusing to turn over their personal social media/electronic account information? The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe the NCAA should rethink its social media compliance allegations against UNC.
Social media usage by student-athletes cannot be eradicated. As the Congressman Anthony Weiner matter clearly demonstrates social media monitoring is futile and is a reactive and not a proactive approach.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
On page 21 of the Notice of Allegations against UNC (Case No. M357, June 21, 2011) 9. b. it states, "[i]n February through June 2010, the institution [UNC] did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program, which delayed the institution's discovery and compounded the provision of impermissible benefits in Allegation Nos. 4-a, 4-c, 4-d and 4-e." In 9. g. the NCAA is requesting, "[c]opies of materials posted on Twitter by football student-athletes..." Furthermore, in 9. h. the NCAA is requesting "[a] statement summarizing information reported by ______(left blank) regarding the institution's efforts to monitor the social networking activity of football student-athletes.
As I previously stated on June 9, 2011, social media monitoring is a futile effort that wastes resources since crowdsouring is already performing this service for free. If the NCAA is now going to require its members to actively monitor its student-athletes' social media accounts this will open up a Pandora's box.
Will the NCAA soon require each of its member schools to have a "minder" follow their student-athletes to listen in on every conversation, phone call; and review every email, text message, electronic communication, etc... of their student-athletes? Will the NCAA soon require every student-athlete list all of their social media accounts to maintain eligibility? What if a student-athlete changes his screen name or deletes a social media account and opens a new one? Will the student-athlete be forced to notify their school's compliance office within 24 hours of the change? If a student-athlete forgets to report a social media account change to the compliance office will the student-athlete automatically become ineligible and/or the member school be found in violation of NCAA rules? If so, what will be the punishment?
Will there be strict liability for failure to report? What if a student-athlete forgets or refuses to list an account due to privacy and/or political speech issues? Will a student-athlete lose his scholarship due to a refusal to turn over his social media account information? What if a student-athletes' Facebook wall is private and/or his Tweets protected? What if someone hacks into a student athletes' account and creates posts that may be rules infractions? What if a student-athlete has a rogue account that is not reported to its compliance office? Will the NCAA require its members to track down every possible unreported student-athlete social media account and/or post?
Would the NCAA strip a national championship from a member school for failure to properly report all of their student-athletes' social media accounts and/or ban students from participating in collegiate sports for refusing to turn over their personal social media/electronic account information? The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe the NCAA should rethink its social media compliance allegations against UNC.
Social media usage by student-athletes cannot be eradicated. As the Congressman Anthony Weiner matter clearly demonstrates social media monitoring is futile and is a reactive and not a proactive approach.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, June 19, 2011
How To Respond To A Social Media Crisis or Scandal: Don't Be A Weiner
One of my favorite television shows, Seinfeld, was not only funny, but it also perfectly discussed the New York City experience. If you have ever lived in New York City you are bound to have come across one of the quirks of the City that was memorialized on the sitcom.
For example, my wife and I once received a ride back from Long Island after a formal affair from a friend of a friend. The ride took about an hour and a half and this person dropped us off one avenue (about 3 city blocks) away from where we lived because he didn't want to have to drive around the avenue and a couple of blocks. It was also raining and my wife was wearing a dress and I a suit and we were both carrying an overnight bag. It was reminiscent of the Seinfeld episode where Elaine went skiing with her friend and her friend didn't want to drop Elaine off in front of her apartment building because the friend would have had to drive around the block.
Seinfeld comes into play in Anthony Weiner's social media scandal because there is an episode where George decides that he should do the opposite of everything he has done his entire life in order to become a success. To avoid or respond to a social media crisis or scandal act in the exact opposite manner that Weiner did. These are some examples in no particular order of how not to act like a Weiner:
1) Don't take naked or inappropriate photographs of yourself with a smart phone or a camera and then upload them online. Instead, if you enjoy looking at yourself naked stand in front of a mirror.
2) Don't have sexually charged conversations online with others and/or send them inappropriate photographs of yourself. Instead, listen to Avenue Q and "The Internet is for Porn" song.
3) Don't wait days to talk with an attorney once your actions have become public. Instead, hire an attorney immediately and be truthful with your legal counsel.
4) Don't falsely claim that a crime has been committed to explain an errant social media post. Once Weiner refused to file a police report it was evident he was lying. Instead, be truthful about the matter. If your attorney believes a crime may be involved due to the online behavior do not go on the record with an explanation because that may be utilized against you at a later date.
5) Don't hold multiple press conferences and act obnoxious and indignant towards the media. Instead, treat the media with courtesy.
6) Don't lie to your political staff. Many congressional staffers work long hours for years with little compensation because they believe in the causes that the politician champions. Instead, be honest with your staff or do not go on the record with them if your attorney advises against discussing the matter.
7) Don't lie to your constituents, colleagues, and friends. The cover up is almost always worse than the initial activity and digital footprints will most likely expose the truth. Instead, if your attorney advises that there is no legal liability involved honestly explain what happened even if it is embarrassing. The American public is extremely understanding and is willing to forgive their politicians, athletes, entertainers, and heroes. If your attorney advises against discussing the matter publicly refuse to answer questions regarding the matter until your lawyer advises otherwise.
8) Don't drag out the situation. If there appears to be no legal liability apologize immediately. Delaying the inevitable apology will only further fuel the media frenzy and create more anger. Don't follow Tiger Woods' social media scandal playbook.
9) Apologize, apologize, and apologize. When you thought you have apologized enough apologize some more. Show contrition and humility. You need to demonstrate remorse for all the harm you have caused.
10) During a resignation do not pretend you are General Douglas MacArthur giving his "I Shall Return" speech. Instead resign with grace and humility. Weiner's resignation speech sounded more like a political stump speech than a resignation. Weiner should have shown more contrition. For example, during his resignation speech he stated, "most importantly my wife and I can continue to heal from the damage I have caused" and that "I will be looking for other ways to contribute my talents".
In general, the public does not care how Weiner will heal or be able to contribute his talents. He has been over-exposed (no pun intended) and people are sick and tired of looking at him and listening to his untruthful statements. New York may have to spend more than a million dollars to hold a special election to fill his former congressional seat so why didn't Weiner apologize to all of the taxpayers who will now have to foot the bill for his reckless behavior?
Weiner's short-term economic situation may be difficult; however, his long-term economic prospects may be rosy. If he stays out of the spotlight for a period of time, demonstrates that he has learned his lesson, shows contrition, and makes penance he may be able to make a comeback. I think it may take years before he may be able to make a political comeback; however, a professional comeback as a political analyst or a lobbyist may be around the corner.
Weiner may want to utilize social media to launch his professional comeback when the time is right. However, he should stay away from social media until he is able to utilize the medium without sending out inappropriate material. If Elliot Spitzer is able to make a comeback after only a few years Weiner should be able to do so also.
To learn how to respond to a social media crisis or scandal you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
For example, my wife and I once received a ride back from Long Island after a formal affair from a friend of a friend. The ride took about an hour and a half and this person dropped us off one avenue (about 3 city blocks) away from where we lived because he didn't want to have to drive around the avenue and a couple of blocks. It was also raining and my wife was wearing a dress and I a suit and we were both carrying an overnight bag. It was reminiscent of the Seinfeld episode where Elaine went skiing with her friend and her friend didn't want to drop Elaine off in front of her apartment building because the friend would have had to drive around the block.
Seinfeld comes into play in Anthony Weiner's social media scandal because there is an episode where George decides that he should do the opposite of everything he has done his entire life in order to become a success. To avoid or respond to a social media crisis or scandal act in the exact opposite manner that Weiner did. These are some examples in no particular order of how not to act like a Weiner:
1) Don't take naked or inappropriate photographs of yourself with a smart phone or a camera and then upload them online. Instead, if you enjoy looking at yourself naked stand in front of a mirror.
2) Don't have sexually charged conversations online with others and/or send them inappropriate photographs of yourself. Instead, listen to Avenue Q and "The Internet is for Porn" song.
3) Don't wait days to talk with an attorney once your actions have become public. Instead, hire an attorney immediately and be truthful with your legal counsel.
4) Don't falsely claim that a crime has been committed to explain an errant social media post. Once Weiner refused to file a police report it was evident he was lying. Instead, be truthful about the matter. If your attorney believes a crime may be involved due to the online behavior do not go on the record with an explanation because that may be utilized against you at a later date.
5) Don't hold multiple press conferences and act obnoxious and indignant towards the media. Instead, treat the media with courtesy.
6) Don't lie to your political staff. Many congressional staffers work long hours for years with little compensation because they believe in the causes that the politician champions. Instead, be honest with your staff or do not go on the record with them if your attorney advises against discussing the matter.
7) Don't lie to your constituents, colleagues, and friends. The cover up is almost always worse than the initial activity and digital footprints will most likely expose the truth. Instead, if your attorney advises that there is no legal liability involved honestly explain what happened even if it is embarrassing. The American public is extremely understanding and is willing to forgive their politicians, athletes, entertainers, and heroes. If your attorney advises against discussing the matter publicly refuse to answer questions regarding the matter until your lawyer advises otherwise.
8) Don't drag out the situation. If there appears to be no legal liability apologize immediately. Delaying the inevitable apology will only further fuel the media frenzy and create more anger. Don't follow Tiger Woods' social media scandal playbook.
9) Apologize, apologize, and apologize. When you thought you have apologized enough apologize some more. Show contrition and humility. You need to demonstrate remorse for all the harm you have caused.
10) During a resignation do not pretend you are General Douglas MacArthur giving his "I Shall Return" speech. Instead resign with grace and humility. Weiner's resignation speech sounded more like a political stump speech than a resignation. Weiner should have shown more contrition. For example, during his resignation speech he stated, "most importantly my wife and I can continue to heal from the damage I have caused" and that "I will be looking for other ways to contribute my talents".
In general, the public does not care how Weiner will heal or be able to contribute his talents. He has been over-exposed (no pun intended) and people are sick and tired of looking at him and listening to his untruthful statements. New York may have to spend more than a million dollars to hold a special election to fill his former congressional seat so why didn't Weiner apologize to all of the taxpayers who will now have to foot the bill for his reckless behavior?
Weiner's short-term economic situation may be difficult; however, his long-term economic prospects may be rosy. If he stays out of the spotlight for a period of time, demonstrates that he has learned his lesson, shows contrition, and makes penance he may be able to make a comeback. I think it may take years before he may be able to make a political comeback; however, a professional comeback as a political analyst or a lobbyist may be around the corner.
Weiner may want to utilize social media to launch his professional comeback when the time is right. However, he should stay away from social media until he is able to utilize the medium without sending out inappropriate material. If Elliot Spitzer is able to make a comeback after only a few years Weiner should be able to do so also.
To learn how to respond to a social media crisis or scandal you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, June 16, 2011
Social Media Ethics, Politics, the First Amendment, and Twitter
The media and the public can't get enough of Congressman Anthony Weiner's Twitter Sex Scandal. Sex, Sports, Entertainment, and Politics drives our culture. People watch television, go to the movies, or view content online generally if it is about one of these four topics. When a situation such as Weinergate contains three of these four issues it may be considered a trifecta. Here, it is sex, entertainment, and politics.
Social Media Ethics is not black and white. There is a tremendous amount of gray. I am a staunch supporter of the protections that the First Amendment provides; however, this right is sometimes balanced against other issues such as privacy, defamation, copyright, etc... The problem is where should the line be drawn as far as what is merely inappropriate, what is unethical, and what is protected under the First Amendment? For example, recently in Minnesota the state Senate Ethics Panel voted to dismiss an ethics complaint if state Sen. Gretchen Hoffman apologized for a Tweet that allegedly took out of context what state Sen. Barb Goodwin stated in a speech to her fellow colleagues. It appears that at least an entire afternoon and evening was spent discussing how to handle this matter.
According to a Minneapolis-St. Paul NBC affiliate news report, the ethics committee debated how Sen. Hoffman should apologize to Sen Goodwin; in person, via Twitter, or to the Senate along with some type of social media component. If Sen. Hoffman's message was just spoken and not tweeted I highly doubt that the Minnesota Senate Ethics Committee would have addressed the matter. Therefore, will social media usage be treated differently than other forms of communication when determining what is ethical, inappropriate, and protected by the First Amendment?
Sending out one allegedly misleading Tweet about a colleague is much different than sending out at least one photograph of your genitals along with multiple allegedly inappropriate photographs of yourself to strangers. I would never recommend following Mr. Weiner's social media or crisis management strategy.
Is Mr. Weiner's behavior merely inappropriate, is it unethical, or is it protected by the First Amendment? Where do we draw the line? I believe a national conversation is needed to discuss how social media and the First Amendment may collide. How far will Minnesota or another government body go in regulating social media political speech? These are just a few of the many legal and political issues that will need to be addressed in the near future.
To learn more about social media political speech and ethics you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Social Media Ethics is not black and white. There is a tremendous amount of gray. I am a staunch supporter of the protections that the First Amendment provides; however, this right is sometimes balanced against other issues such as privacy, defamation, copyright, etc... The problem is where should the line be drawn as far as what is merely inappropriate, what is unethical, and what is protected under the First Amendment? For example, recently in Minnesota the state Senate Ethics Panel voted to dismiss an ethics complaint if state Sen. Gretchen Hoffman apologized for a Tweet that allegedly took out of context what state Sen. Barb Goodwin stated in a speech to her fellow colleagues. It appears that at least an entire afternoon and evening was spent discussing how to handle this matter.
According to a Minneapolis-St. Paul NBC affiliate news report, the ethics committee debated how Sen. Hoffman should apologize to Sen Goodwin; in person, via Twitter, or to the Senate along with some type of social media component. If Sen. Hoffman's message was just spoken and not tweeted I highly doubt that the Minnesota Senate Ethics Committee would have addressed the matter. Therefore, will social media usage be treated differently than other forms of communication when determining what is ethical, inappropriate, and protected by the First Amendment?
Sending out one allegedly misleading Tweet about a colleague is much different than sending out at least one photograph of your genitals along with multiple allegedly inappropriate photographs of yourself to strangers. I would never recommend following Mr. Weiner's social media or crisis management strategy.
Is Mr. Weiner's behavior merely inappropriate, is it unethical, or is it protected by the First Amendment? Where do we draw the line? I believe a national conversation is needed to discuss how social media and the First Amendment may collide. How far will Minnesota or another government body go in regulating social media political speech? These are just a few of the many legal and political issues that will need to be addressed in the near future.
To learn more about social media political speech and ethics you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, June 13, 2011
How To Respond To A Poltical Social Media Crisis or Scandal
Politicians along with others who are in the public eye such as athletes, entertainers, etc... need to know how to properly respond to a social media crisis or scandal. During the past two weeks, Congressman Anthony Weiner has been embroiled in a self-inflicted social media scandal. For the past several years, Mr. Weiner has been utilizing social media to allegedly interact inappropriately with others online. Not only is Mr. Weiner an elected U.S. Congressman, but he is also married and his wife is pregnant.
Politicians in the United States have been entangled in sex scandals since our country's birth and Mr. Weiner will not be the last elected official to become involved in this type of crisis. However, what sets this scandal apart from previous political sex scandals is that Mr. Weiner has left little to the imagination. Previously, the public could only imagine what had occurred. During President Clinton's sex scandal the main piece of evidence of an affair with White House intern Monica Lewinsky was her stained blue dress. Through DNA testing it was proven that President Clinton was the source of the stain on the blue dress. Even with this evidence there were still a lot of unanswered questions.
If a politician becomes tangled in a Social Media Crisis or Scandal these are some of the steps that should be taken in no particular order:
1. Engage a lawyer. The most important member of a crisis management team is one's legal counsel. A lawyer will be able to advise if there is any civil or criminal liability. It appears that Mr. Weiner waited four days before hiring an attorney to advise him. This is a lifetime in the Social Media Age.
2. Be open and honest with your attorney. A lawyer(s) may be the only person whom a politician may fully trust due to the sanctity of the attorney-client privilege. In addition, an attorney must know all the facts in order to determine the best course of action. I don't know if Mr. Weiner was honest with his lawyer because it allegedly took a week between the time that he hired a lawyer and he publicly admitted to acting what has been deemed inappropriate towards others online.
3. Assess the political, professional, and personal issues that are involved. Every crisis has different facts and no two situations are exactly alike. Since Mr. Weiner's scandal first became public, it seems as though he has been "winging" his responses. At first, Mr. Weiner stated that his Twitter account was hacked and that it was a prank; then he acted indignant towards the media; then he tried to be calm and offered interviews around the clock; then he admitted he sent a photograph of himself in his underwear to a young woman after Andrew Breitbart publicly stated he had more evidence about the matter; then he stated he wasn't resigning from Congress; then a self-taken photograph of Mr. Weiner's gentials appeared online; then the police investigated Mr. Weiner's online interactions with a 17-year old; then several members of the Democratic leadership called for his resignation; then Mr. Weiner stated that he will be asking for a leave of Congress to seek treatment; and now more images of Mr. Weiner are appearing online.
4. Assemble your crisis management team. After an attorney has determined what type of legal liability issues are involved the response team may be assembled.
5. Create and implement a crisis management response. The response and its implementation will depend upon the situation. As of this writing, it appears that Mr. Weiner may not have any legal liability for his online behavior. However, as more evidence comes to light that may change and it is too soon to determine what if any U.S. House Ethics Rules have been broken.
6. Figure out how to address your political staff. Some staff members may need to know the truth due to the nature of their position while others do not. Remember the quote from Animal Farm, "[s]ome animals are more equal than others."
7. Do not lie to the American public. The American public is very forgiving. President Clinton's initial reaction regarding the publicity surrounding his relationship with Monica Lewinsky was to cover it up. Mr. Clinton most likely had no idea that Ms. Lewinsky had undeniable proof of a relationship between them. Even though the scandal did not cost Mr. Clinton his office, it created great embarrassment for himself and his family and it damaged his legacy. In addition, he lost his law license because of the matter.
8. Batten down the hatches. Prepare for the worst and hope for the best. Be prepared for any possible scenario.
9. Reassess the situation continuously. Your position may become untenable as more facts emerge.
10. Determine whether you will fight to keep your seat or if you will resign. Becoming a U.S. Senator or Congressman is not a right but a privilege. Many members of Congress are type A personalities since there are only 535 of these positions and every seat is highly coveted. Therefore, resigning may only occur when there are no other viable options.
The bottom line is that it is important to be proactive and not reactive. If Mr. Weiner would have handled his social media scandal differently it may have already blown over. However, his continuing missteps have only made the situation worse.
To learn how to respond to a political crisis or scandal in the Social Media Age you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Politicians in the United States have been entangled in sex scandals since our country's birth and Mr. Weiner will not be the last elected official to become involved in this type of crisis. However, what sets this scandal apart from previous political sex scandals is that Mr. Weiner has left little to the imagination. Previously, the public could only imagine what had occurred. During President Clinton's sex scandal the main piece of evidence of an affair with White House intern Monica Lewinsky was her stained blue dress. Through DNA testing it was proven that President Clinton was the source of the stain on the blue dress. Even with this evidence there were still a lot of unanswered questions.
If a politician becomes tangled in a Social Media Crisis or Scandal these are some of the steps that should be taken in no particular order:
1. Engage a lawyer. The most important member of a crisis management team is one's legal counsel. A lawyer will be able to advise if there is any civil or criminal liability. It appears that Mr. Weiner waited four days before hiring an attorney to advise him. This is a lifetime in the Social Media Age.
2. Be open and honest with your attorney. A lawyer(s) may be the only person whom a politician may fully trust due to the sanctity of the attorney-client privilege. In addition, an attorney must know all the facts in order to determine the best course of action. I don't know if Mr. Weiner was honest with his lawyer because it allegedly took a week between the time that he hired a lawyer and he publicly admitted to acting what has been deemed inappropriate towards others online.
3. Assess the political, professional, and personal issues that are involved. Every crisis has different facts and no two situations are exactly alike. Since Mr. Weiner's scandal first became public, it seems as though he has been "winging" his responses. At first, Mr. Weiner stated that his Twitter account was hacked and that it was a prank; then he acted indignant towards the media; then he tried to be calm and offered interviews around the clock; then he admitted he sent a photograph of himself in his underwear to a young woman after Andrew Breitbart publicly stated he had more evidence about the matter; then he stated he wasn't resigning from Congress; then a self-taken photograph of Mr. Weiner's gentials appeared online; then the police investigated Mr. Weiner's online interactions with a 17-year old; then several members of the Democratic leadership called for his resignation; then Mr. Weiner stated that he will be asking for a leave of Congress to seek treatment; and now more images of Mr. Weiner are appearing online.
4. Assemble your crisis management team. After an attorney has determined what type of legal liability issues are involved the response team may be assembled.
5. Create and implement a crisis management response. The response and its implementation will depend upon the situation. As of this writing, it appears that Mr. Weiner may not have any legal liability for his online behavior. However, as more evidence comes to light that may change and it is too soon to determine what if any U.S. House Ethics Rules have been broken.
6. Figure out how to address your political staff. Some staff members may need to know the truth due to the nature of their position while others do not. Remember the quote from Animal Farm, "[s]ome animals are more equal than others."
7. Do not lie to the American public. The American public is very forgiving. President Clinton's initial reaction regarding the publicity surrounding his relationship with Monica Lewinsky was to cover it up. Mr. Clinton most likely had no idea that Ms. Lewinsky had undeniable proof of a relationship between them. Even though the scandal did not cost Mr. Clinton his office, it created great embarrassment for himself and his family and it damaged his legacy. In addition, he lost his law license because of the matter.
8. Batten down the hatches. Prepare for the worst and hope for the best. Be prepared for any possible scenario.
9. Reassess the situation continuously. Your position may become untenable as more facts emerge.
10. Determine whether you will fight to keep your seat or if you will resign. Becoming a U.S. Senator or Congressman is not a right but a privilege. Many members of Congress are type A personalities since there are only 535 of these positions and every seat is highly coveted. Therefore, resigning may only occur when there are no other viable options.
The bottom line is that it is important to be proactive and not reactive. If Mr. Weiner would have handled his social media scandal differently it may have already blown over. However, his continuing missteps have only made the situation worse.
To learn how to respond to a political crisis or scandal in the Social Media Age you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, June 9, 2011
Players Associations, Sports Leagues, the NCAA, and the Olympics Must Say No To Social Media Monitoring of Athletes
Professional and amateur sports must say no to forcing social media monitoring software (e.g. malware) on their professional, amateur, and student athletes. Criminals in prison and those under house arrest need to be monitored and tracked; however, young men and women should be provided social media life skills.
Institutions that deploy social media monitoring services are wasting their precious resources since crowdsourcing already performs this service for free. Monitoring athletes' social media usage is a reactive approach that is doomed to failure. A recent CBS Sports article touted social media monitoring of professional and amateur athletes as something that both labor and management could agree on. The article further states that within 2-3 minutes after an alleged inappropriate post a cautionary e-mail is sent to both the monitor (a school or franchise) and an athlete. What the article does not discuss is that once a Tweet or a Facebook post has been made it can never be deleted from the Internet. Within seconds, a Tweet can be re-tweeted and a Facebook post can be shared hundreds of times.
Therefore, how can social media monitoring help? It can't. Remember Congressman Weiner's accidental tweet that was meant to be a direct message. Within a few minutes after Mr. Weiner Tweeted a message to a college student that included a link to a photograph of himself in his underwear he tried to delete it. However, once content has been uploaded online it is too late. Mr. Weiner learned this the hard way (no pun intended). Thousands of people were following Mr. Weiner on Twitter so no social media monitoring service could have saved Mr. Weiner from his own stupidity.
Social Media monitoring is like using a condom after sex. It is too late to offer any protection. Once an alleged inappropriate message has been sent out via social media a monitoring service is worthless because it can't protect an athlete or an institution from the consequences of an alleged inappropriate post. Social Media monitoring services are unable to offer protection because they are reactive and not proactive. In other words, these services are fool's gold.
There are multiple major legal issues involved with social media monitoring of athletes. These may include First Amendment, employment, and tort liability issues. Those organizations that deploy social media monitoring of their athletes are not only wasting their time and money on a worthless reactive service, but they also are creating major legal liability issues. Furthermore, it is very easy to change a social media account name and there is the problem of fake accounts and hacked accounts.
The bottom line is that professional and amateur sports organizations along with colleges and universities should not deploy social media monitoring of their athletes unless they are interested in wasting their money and incurring unanticipated legal liabilities.
To learn how to avoid social media legal liability in professional and amateur sports you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Institutions that deploy social media monitoring services are wasting their precious resources since crowdsourcing already performs this service for free. Monitoring athletes' social media usage is a reactive approach that is doomed to failure. A recent CBS Sports article touted social media monitoring of professional and amateur athletes as something that both labor and management could agree on. The article further states that within 2-3 minutes after an alleged inappropriate post a cautionary e-mail is sent to both the monitor (a school or franchise) and an athlete. What the article does not discuss is that once a Tweet or a Facebook post has been made it can never be deleted from the Internet. Within seconds, a Tweet can be re-tweeted and a Facebook post can be shared hundreds of times.
Therefore, how can social media monitoring help? It can't. Remember Congressman Weiner's accidental tweet that was meant to be a direct message. Within a few minutes after Mr. Weiner Tweeted a message to a college student that included a link to a photograph of himself in his underwear he tried to delete it. However, once content has been uploaded online it is too late. Mr. Weiner learned this the hard way (no pun intended). Thousands of people were following Mr. Weiner on Twitter so no social media monitoring service could have saved Mr. Weiner from his own stupidity.
Social Media monitoring is like using a condom after sex. It is too late to offer any protection. Once an alleged inappropriate message has been sent out via social media a monitoring service is worthless because it can't protect an athlete or an institution from the consequences of an alleged inappropriate post. Social Media monitoring services are unable to offer protection because they are reactive and not proactive. In other words, these services are fool's gold.
There are multiple major legal issues involved with social media monitoring of athletes. These may include First Amendment, employment, and tort liability issues. Those organizations that deploy social media monitoring of their athletes are not only wasting their time and money on a worthless reactive service, but they also are creating major legal liability issues. Furthermore, it is very easy to change a social media account name and there is the problem of fake accounts and hacked accounts.
The bottom line is that professional and amateur sports organizations along with colleges and universities should not deploy social media monitoring of their athletes unless they are interested in wasting their money and incurring unanticipated legal liabilities.
To learn how to avoid social media legal liability in professional and amateur sports you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, June 6, 2011
Update: Social Media Crisis Management, Weinergate, Politics, Football, and the Law
Soon after I made my original post regarding Congressman Weiner's alleged inappropriate Tweet, Mr. Weiner came clean in a news conference in New York City. Mr. Weiner apologized for lying and his terrible mistake throughout his social media crisis.
If Mr. Weiner would have hired an attorney well versed in social media matters immediately after this scandal broke and received and followed his advice the fallout of this situation may have been lessened. People make dumb mistakes all the time. However, Mr. Weiner should have known better, especially since fellow Congressman Chris Lee resigned a few months ago due to a similar situation.
It will be very difficult for Mr. Weiner to regain the trust and respect of his constituents and his colleagues. As I have been saying for a long time, be careful what you post online. One wrong post may destroy your professional career and/or personal life.
To learn how to properly handle a social media crisis you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
If Mr. Weiner would have hired an attorney well versed in social media matters immediately after this scandal broke and received and followed his advice the fallout of this situation may have been lessened. People make dumb mistakes all the time. However, Mr. Weiner should have known better, especially since fellow Congressman Chris Lee resigned a few months ago due to a similar situation.
It will be very difficult for Mr. Weiner to regain the trust and respect of his constituents and his colleagues. As I have been saying for a long time, be careful what you post online. One wrong post may destroy your professional career and/or personal life.
To learn how to properly handle a social media crisis you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Social Media Crisis Management, Weinergate, Politics, Football, and the Law
Does your company or client have a social media crisis management plan? Social media crisis management is not the same as traditional media crisis management. Social media is a different animal than traditional media and those who advise clients in the social media space must understand the legal, political, public relations, and economic effects, etc... of a social media crisis.
In a social media crisis management plan, a lawyer may play a central role within the social media crisis management team. The type of role that a lawyer plays in a social media crisis depends on the matter. Legal issues appear to be front and center in many of these situations so a lawyer may act in a capacity similar to a quarterback and/or a middle linebacker on a football team. Sometimes a lawyer must go on the offensive and act like Johnny Unitas to further his client's interests. At other times, a lawyer must act like Ray Lewis to defend his client's interests. A lawyer must have a multi-dimensional background and the social media skills, knowledge, and personality to handle the situation.
Last week, Congressman Anthony Weiner of New York was embroiled in a scandal due to his alleged social media usage. A photograph of a man in his briefs was sent from Congressman Weiner's Twitter account to a college student. Mr. Weiner initially acted like this matter was a prank and no big deal. Hacking into an email or social media account is not as uncommon as some may think and there are serious security loopholes in many online systems. For example, Sarah Palin's email account was hacked during the 2008 presidential campaign and the perpetrator was sentenced to a year and a day in prison for unauthorized access to a protected computer.
The alleged hacking of Mr. Weiner's Twitter account has been called "Weinergate" by some media outlets. The story would have died a natural death within a couple of days it first becoming public; however, Mr. Weiner could not say with "certitude" that the alleged inappropriate image that was sent from his Twitter account was not of him. In addition, Mr. Weiner did not ask for an official investigation into the matter by the proper authorities. It is very troubling that Mr. Weiner has not requested an official investigation into this matter.
Due to Mr. Weiner's initial handling of the matter, the story has mushroomed and has stayed in the news cycle for more than a week. I commented about this matter on MSNBC on June 1, 2011 during the noon hour. During my appearance on MSNBC, I stated that wire fraud and/or computer fraud may have occurred if Mr. Weiner's Twitter account or other electronic systems were hacked. In addition, I stated that Mr. Weiner should request an official investigation into the matter by the proper authorities.
At first glance, it sounds ridiculous to spend precious resources to investigate whether a congressman sent an inappropriate image from his Twitter account. Our country has better things to do with its time and money than to investigate whether a congressman is sending allegedly lewd images of himself to others online. However, during the past few weeks there have been some high profile cyber attacks against some of our country's largest companies and if Mr. Weiner's Twitter account and/or other electronic accounts were hacked it needs to be investigated to determine if there are any security vulnerabilities with Mr. Weiner's electronic congressional accounts.
Hacking may be considered a game or a prank by some people. In some instances, hackers are able to find and notify the public about legitimate computer security concerns. However, hacking should not be thought of as an innocent prank because some countries now have cyber warfare units and it is alleged that the U.S. may attack another country conventionally if it is attacked online.
As I am writing this post, it appears that this may not be the first time that inappropriate photos have been sent from an electronic account purportedly belonging to Mr. Weiner. Since it appears that Weinergate may have gotten some new steam it is imperative that Mr. Weiner get his social media crisis management team together immediately. Mr. Weiner may want to avoid Tiger Woods' and Brett Favre's social media crisis management mistakes. It is too late to follow David Letterman's playbook and immediately do a mea culpa; however, if the new allegations against Mr. Weiner are true he should come clean before this scandal destroys his political career and personal life.
To learn more about the legal issues that are intertwined with social media crisis management and how to handle a social media crisis you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
In a social media crisis management plan, a lawyer may play a central role within the social media crisis management team. The type of role that a lawyer plays in a social media crisis depends on the matter. Legal issues appear to be front and center in many of these situations so a lawyer may act in a capacity similar to a quarterback and/or a middle linebacker on a football team. Sometimes a lawyer must go on the offensive and act like Johnny Unitas to further his client's interests. At other times, a lawyer must act like Ray Lewis to defend his client's interests. A lawyer must have a multi-dimensional background and the social media skills, knowledge, and personality to handle the situation.
Last week, Congressman Anthony Weiner of New York was embroiled in a scandal due to his alleged social media usage. A photograph of a man in his briefs was sent from Congressman Weiner's Twitter account to a college student. Mr. Weiner initially acted like this matter was a prank and no big deal. Hacking into an email or social media account is not as uncommon as some may think and there are serious security loopholes in many online systems. For example, Sarah Palin's email account was hacked during the 2008 presidential campaign and the perpetrator was sentenced to a year and a day in prison for unauthorized access to a protected computer.
The alleged hacking of Mr. Weiner's Twitter account has been called "Weinergate" by some media outlets. The story would have died a natural death within a couple of days it first becoming public; however, Mr. Weiner could not say with "certitude" that the alleged inappropriate image that was sent from his Twitter account was not of him. In addition, Mr. Weiner did not ask for an official investigation into the matter by the proper authorities. It is very troubling that Mr. Weiner has not requested an official investigation into this matter.
Due to Mr. Weiner's initial handling of the matter, the story has mushroomed and has stayed in the news cycle for more than a week. I commented about this matter on MSNBC on June 1, 2011 during the noon hour. During my appearance on MSNBC, I stated that wire fraud and/or computer fraud may have occurred if Mr. Weiner's Twitter account or other electronic systems were hacked. In addition, I stated that Mr. Weiner should request an official investigation into the matter by the proper authorities.
At first glance, it sounds ridiculous to spend precious resources to investigate whether a congressman sent an inappropriate image from his Twitter account. Our country has better things to do with its time and money than to investigate whether a congressman is sending allegedly lewd images of himself to others online. However, during the past few weeks there have been some high profile cyber attacks against some of our country's largest companies and if Mr. Weiner's Twitter account and/or other electronic accounts were hacked it needs to be investigated to determine if there are any security vulnerabilities with Mr. Weiner's electronic congressional accounts.
Hacking may be considered a game or a prank by some people. In some instances, hackers are able to find and notify the public about legitimate computer security concerns. However, hacking should not be thought of as an innocent prank because some countries now have cyber warfare units and it is alleged that the U.S. may attack another country conventionally if it is attacked online.
As I am writing this post, it appears that this may not be the first time that inappropriate photos have been sent from an electronic account purportedly belonging to Mr. Weiner. Since it appears that Weinergate may have gotten some new steam it is imperative that Mr. Weiner get his social media crisis management team together immediately. Mr. Weiner may want to avoid Tiger Woods' and Brett Favre's social media crisis management mistakes. It is too late to follow David Letterman's playbook and immediately do a mea culpa; however, if the new allegations against Mr. Weiner are true he should come clean before this scandal destroys his political career and personal life.
To learn more about the legal issues that are intertwined with social media crisis management and how to handle a social media crisis you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, June 2, 2011
Academic Research Regarding How Social Media May Affect Access To Legal Information
I was recently contacted by Marcela Monroy, a fellow lawyer who is furthering her legal education by studying for a Master in Legal Sociology. As part of her studies, she has a created an "academic survey to explore the impact of social networks (forums, blogs, chats, message boards, etc) and the way people access legal information regarding any issue or injurious experience."
I encourage everyone who reads this blog to take the survey. It takes a few minutes of your time and it will assist a fellow lawyer out with her research. In addition, the survey may help answer some questions about how social media has affected access to legal information.
Here is a link to Ms. Monroy's survey in English, Spanish, and French.
If anyone is interested in assisting Ms. Monroy further with her research please contact me via email and I will forward your information over to Ms. Monroy.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
I encourage everyone who reads this blog to take the survey. It takes a few minutes of your time and it will assist a fellow lawyer out with her research. In addition, the survey may help answer some questions about how social media has affected access to legal information.
Here is a link to Ms. Monroy's survey in English, Spanish, and French.
If anyone is interested in assisting Ms. Monroy further with her research please contact me via email and I will forward your information over to Ms. Monroy.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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