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.
Friday, February 5, 2010
Sunday, January 31, 2010
Are You Willing To Pay For Social Media Content?
Due to the popularity of the original Napster and other early file sharing services, a large segment of the population believes it should not have to pay for the rights to digitally download music, movies, or other forms of Internet accessible entertainment. The Recording Industry Association of America has led the fight to stop the wholesale theft of intellectual property rights from its members. According to the RIAA's website, global music piracy causes more than $12.5 billion dollars in economic losses every year and the loss of more than 71,000 jobs.
Love or hate Apple, the company created an easy to use device, the iPod and set an unofficial price point of $.99 for each entertainment segment that is downloaded. In 2007, Radiohead provided fans the opportunity to pay whatever a fan wanted for the right to download their songs. Recently, Linkin Park was a driving force behind another pay what you want effort for non-profit Music For Relief that supports the Haiti relief effort. This business model may work in some cases, but the free rider dilema where too many people don't want to pay a fair price for a product or service is still a challenge that social media content providers must confront.
Amazon recently tried to replicate Apple's business model and industry position in the book business with their price point of $9.99 per Kindle download. However, major publishing house, Macmillian has refused to accept Amazon's price point and a legal dispute may be in the works.
As an active user of social media, I am fully aware of the cost of content creation and usage. Most social media websites are financially supported by advertising. Some have paywalls that offer a teaser before requiring a user to pay and others are fully subscription based. In the pornography industry, there are group subscriptions where belonging to one site automatically enables you to access other sites with your subscription or provides a reduced rate for membership.
The newspaper industry is on life support and it appears that Senator Cardin's proposal to allow newspapers to become non-profits has not been embraced by the marketplace. In contrast, Rupert Murdoch has been preaching about charging for his newspaper's content. As a Wall Street Journal subscriber, I believe the paper is one of only a couple of news organizations in the world that offers content that its users are willing to pay a subscription premium for. However, if I was offered a flat fee to access premium content for 25 of my most visited social media websites, I may be willing to pay for it if it was priced correctly. This subscription model would be based on the way cable companies offer premium channels on top of their basic packages.
There may be antitrust issues if a group of the most popular news organizations/social media content providers formed an entity and began offering their content in a pooled subscription. The Sports Broadcasting Act enables professional and collegiate sports leagues to package and sell pooled broadcasting rights. Even though member teams/schools are individual entities, Congress has carved out an exemption for this industry.
Why can't Congress carve out the same type of exemption for news organizations and/or social media and/or entertainment entities that would enable them to pool their resources? If professional sports leagues and NCAA member schools enjoy this type of special exemption why can't the news and/or the social media/entertainment industry also receive a special exemption under the law?
The bottom line is that content creation is not free and imaginative business methods must be utilized that may require new laws or a rethinking of some of our current laws. I believe now is the time for the business, legal, and political community to come together to draft a plan that accounts for this change in how people view, price, and protect intellectual property. To learn more about these issues you may contact me www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Love or hate Apple, the company created an easy to use device, the iPod and set an unofficial price point of $.99 for each entertainment segment that is downloaded. In 2007, Radiohead provided fans the opportunity to pay whatever a fan wanted for the right to download their songs. Recently, Linkin Park was a driving force behind another pay what you want effort for non-profit Music For Relief that supports the Haiti relief effort. This business model may work in some cases, but the free rider dilema where too many people don't want to pay a fair price for a product or service is still a challenge that social media content providers must confront.
Amazon recently tried to replicate Apple's business model and industry position in the book business with their price point of $9.99 per Kindle download. However, major publishing house, Macmillian has refused to accept Amazon's price point and a legal dispute may be in the works.
As an active user of social media, I am fully aware of the cost of content creation and usage. Most social media websites are financially supported by advertising. Some have paywalls that offer a teaser before requiring a user to pay and others are fully subscription based. In the pornography industry, there are group subscriptions where belonging to one site automatically enables you to access other sites with your subscription or provides a reduced rate for membership.
The newspaper industry is on life support and it appears that Senator Cardin's proposal to allow newspapers to become non-profits has not been embraced by the marketplace. In contrast, Rupert Murdoch has been preaching about charging for his newspaper's content. As a Wall Street Journal subscriber, I believe the paper is one of only a couple of news organizations in the world that offers content that its users are willing to pay a subscription premium for. However, if I was offered a flat fee to access premium content for 25 of my most visited social media websites, I may be willing to pay for it if it was priced correctly. This subscription model would be based on the way cable companies offer premium channels on top of their basic packages.
There may be antitrust issues if a group of the most popular news organizations/social media content providers formed an entity and began offering their content in a pooled subscription. The Sports Broadcasting Act enables professional and collegiate sports leagues to package and sell pooled broadcasting rights. Even though member teams/schools are individual entities, Congress has carved out an exemption for this industry.
Why can't Congress carve out the same type of exemption for news organizations and/or social media and/or entertainment entities that would enable them to pool their resources? If professional sports leagues and NCAA member schools enjoy this type of special exemption why can't the news and/or the social media/entertainment industry also receive a special exemption under the law?
The bottom line is that content creation is not free and imaginative business methods must be utilized that may require new laws or a rethinking of some of our current laws. I believe now is the time for the business, legal, and political community to come together to draft a plan that accounts for this change in how people view, price, and protect intellectual property. To learn more about these issues you may contact me www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, January 23, 2010
The Legal Definition of a Twitter Follower
Twitter has become one of the most popular social media websites. In 2009, there were several highly publicized lawsuits that were based on what people have tweeted (communicated) through twitter. Until recently, to find out what has been tweeted by someone you needed to "follow" someone's twitter feed. However, search engines Google and Bing now incorporate twitter feeds in their search engine results. For those who are not familiar with Twitter, it is a form of communication limited to 140 characters and a twitter feed is analogous to the the old stock tickers on wall street.
In order to keep abreast of the information posted by a Twitter account holder another Twitter account holder needs to become a "follower" of the account holder he or she wants to follow. Becoming a "follower" of another's twitter feed only means that you now have the ability read that person's tweets. Unlike Facebook in which someone has to be accepted as a "friend" before being able to essentially follow that person's posts, Twitter does not have that same restriction.A Twitter account holder has the ability to delete unwanted followers or to protect his/her tweets from non-followers.
According to Merriam-Webster's Online Dictionary, the word "follower" is a noun and its top two definitions are:
1 a: one in the service of another : retainer
b: one that follows the opinions or teachings of another
c: one that imitates another
2 archaic : one that chases
I tried to unsuccessfully find a legal definition for "Twitter Follower" on Merriam-Webster's Online Dictionary, Black's Law Dictionary and several other online reference sources. The reason for creating a legal definition of a "Twitter Follower" is that the U.S. legal system may one day need the definition to determine possible attorney or witness conflicts of interest, alleged juror misconduct, jury tampering or connections between those involved in a legal matter.
c: one that imitates another
2 archaic : one that chases
I tried to unsuccessfully find a legal definition for "Twitter Follower" on Merriam-Webster's Online Dictionary, Black's Law Dictionary and several other online reference sources. The reason for creating a legal definition of a "Twitter Follower" is that the U.S. legal system may one day need the definition to determine possible attorney or witness conflicts of interest, alleged juror misconduct, jury tampering or connections between those involved in a legal matter.
"A person or entity who has a Twitter account who has gained access or the ability to follow or read another Twitter account holder's tweets."
Becoming a Twitter Follower of another Twitter account holder does not mean that the "Follower" or "Followee" have ever met or have any type of personal or professional relationship. For example, entertainer Ashton Kutcher has more than 4,430,000 twitter followers and he is following at least 300 other Twitter accounts. I am willing to guarantee that Mr. Kutcher does not know 99.99% of those who are following him.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, January 15, 2010
The Facebook Five and Alleged Juror Misconduct in Baltimore Mayor's Trial
The recently concluded trial of Baltimore's soon to be former Mayor Dixon ended when Mayor Dixon was found guilty of embezzlement for stealing gift cards from the poor. Numerous times throughout the trial and prior to jury deliberations, Hon. Dennis M. Sweeney, who presided over Ms. Dixon's trial, admonished the jury not to discuss the case with anyone. This jury instruction is standard throughout the country. After Ms. Dixon was found guilty of embezzlement, but before she was sentenced, it came to the attention of her legal team that 5 of the 12 members of the jury (the "Facebook Five") became "Facebook Friends" and started communicating with each other on Facebook.
Mayor Dixon filed a motion to set aside the verdict and one of her arguments was that the Facebook Five's Facebook activities constituted jury misconduct under Maryland law. This argument became moot when the Mayor agreed to withdraw it after a plea agreement was entered that resolved all of the Mayor's outstanding legal issues.
The State of Maryland like most states does not have an official social media policy relating to court room behavior for judges, attorneys, witnesses, or members of the jury. According to my research, there are no reported cases in the country that have had to determine whether Facebook Friending and/or Facebook posting about a case during a trial by a juror is juror misconduct. Maryland has ruled that juror Internet research during deliberations is juror misconduct. In Wardlaw v. State of Maryland, 971 A.2d 331 (2009),the court reversed an assault conviction after a deliberating juror used the Internet to perform research about the case and notified other deliberating jurors about the research.
If the Facebook Five discussed substantive issues about the case outside of the courtroom in any medium, including Facebook, there is no doubt there was juror misconduct and the conviction would most likely have been overturned. However, if the Facebook Five were just Facebook friending each other and not discussing substantive issues of the case, this issue is just a red herring that was deftly used by the Mayor's legal team to secure her Alford plea and enable her to keep her $83,000 annual pension and enable her to eventually run for public office again in the future.
Courts throughout the country should expand upon the jury instruction that prohibits jurors from talking about the case or performing one's own independent research to specifically include prohibiting jurors from discussing anything pertaining to the case on social media. By acknowledging on a Facebook wall that you are on a jury for anyone, let alone someone as high profile as the mayor of a major metropolis, invites all of your friends to comment and possibly influence your opinion as to the guilt or innocence of a defendant, something clearly prohibited by current jury instructions.
Mayor Dixon's high profile case demonstrates the need for state bar associations throughout the country to work in conjunction with their respective state legislatures and judiciaries to create social media policies that address the reality of today's technology and citizens' social media habits. Therefore, I urge state bar association presidents throughout the country to create social media law committees to work with their legislators and members of the judiciary to craft uniform court room social media policies. Continuing to ignore the realities of the Internet/Social Media Age is a recipe for injustice. 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.
Mayor Dixon filed a motion to set aside the verdict and one of her arguments was that the Facebook Five's Facebook activities constituted jury misconduct under Maryland law. This argument became moot when the Mayor agreed to withdraw it after a plea agreement was entered that resolved all of the Mayor's outstanding legal issues.
The State of Maryland like most states does not have an official social media policy relating to court room behavior for judges, attorneys, witnesses, or members of the jury. According to my research, there are no reported cases in the country that have had to determine whether Facebook Friending and/or Facebook posting about a case during a trial by a juror is juror misconduct. Maryland has ruled that juror Internet research during deliberations is juror misconduct. In Wardlaw v. State of Maryland, 971 A.2d 331 (2009),the court reversed an assault conviction after a deliberating juror used the Internet to perform research about the case and notified other deliberating jurors about the research.
If the Facebook Five discussed substantive issues about the case outside of the courtroom in any medium, including Facebook, there is no doubt there was juror misconduct and the conviction would most likely have been overturned. However, if the Facebook Five were just Facebook friending each other and not discussing substantive issues of the case, this issue is just a red herring that was deftly used by the Mayor's legal team to secure her Alford plea and enable her to keep her $83,000 annual pension and enable her to eventually run for public office again in the future.
Courts throughout the country should expand upon the jury instruction that prohibits jurors from talking about the case or performing one's own independent research to specifically include prohibiting jurors from discussing anything pertaining to the case on social media. By acknowledging on a Facebook wall that you are on a jury for anyone, let alone someone as high profile as the mayor of a major metropolis, invites all of your friends to comment and possibly influence your opinion as to the guilt or innocence of a defendant, something clearly prohibited by current jury instructions.
Mayor Dixon's high profile case demonstrates the need for state bar associations throughout the country to work in conjunction with their respective state legislatures and judiciaries to create social media policies that address the reality of today's technology and citizens' social media habits. Therefore, I urge state bar association presidents throughout the country to create social media law committees to work with their legislators and members of the judiciary to craft uniform court room social media policies. Continuing to ignore the realities of the Internet/Social Media Age is a recipe for injustice. 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, January 8, 2010
The Legal Definition of a Facebook Friend
According to Merriam-Webster's online dictionary, the top two definitions of the word "friend" are:
1 a: one attached to another by affection or esteem b: acquaintance
2 a: one that is not hostile b: one that is of the same nation, party, or group.
The New Oxford Dictionary's 2009 word of the year was "unfriend." The New Oxford Dictionary recognizes "unfriend" as a verb, and defines "unfriend" to mean "to remove someone as a 'friend' on a social networking site such as Facebook."
Therefore, I would deduce that the New Oxford Dictionary would define the verb "friend" to mean, "to add someone as a 'friend' on a social networking site such as Facebook." When I looked for the definition of a "Facebook Friend" on Facebook, I could not find a definition. As far as I could determine, it is not defined on Facebook. When I looked on other online dictionaries, Black's Law Dictionary, and other online legal dictionaries, I could not find a legal definition for "Facebook Friend."
I would like to create a legal definition for a "Facebook Friend." A "Facebook Friend" is 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.
Some "Facebook Friends" are close friends with whom you keep in touch with on a regular basis. Some "Facebook Friends" are people with whom you have not spoken with for 10-20 years, while others may only be "Facebook Friends" of "Facebook Friends." Some people are "Facebook Friends" with movie stars and other people deemed famous only because a "Friend Request" was sent and accepted.
If a "Friend Request" is accepted and two people are "Facebook Friends" that does not mean that these two people are actual friends or have any contact other than an acceptance of a "Friend Request." A Facebook user has the ability through his or her privacy controls to limit what some "Facebook Friends" are able to view about them. For example, some "Facebook Friends" are able to view personal information about their "Facebook Friends" while others are not.
The reason for creating a legal definition of a "Facebook Friend" is that the U.S. legal system may one day need to create a definition to determine possible attorney or witness conflicts of interest, or jury tampering.
The bottom line is that just because two people are "Facebook Friends" does not mean that either person actually knows each other. In other words, "Facebook Friending" may be just the online equivalent of handing out your business card to a complete stranger. To learn more about this issue you may contact me at www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
1 a: one attached to another by affection or esteem b: acquaintance
2 a: one that is not hostile b: one that is of the same nation, party, or group.
The New Oxford Dictionary's 2009 word of the year was "unfriend." The New Oxford Dictionary recognizes "unfriend" as a verb, and defines "unfriend" to mean "to remove someone as a 'friend' on a social networking site such as Facebook."
Therefore, I would deduce that the New Oxford Dictionary would define the verb "friend" to mean, "to add someone as a 'friend' on a social networking site such as Facebook." When I looked for the definition of a "Facebook Friend" on Facebook, I could not find a definition. As far as I could determine, it is not defined on Facebook. When I looked on other online dictionaries, Black's Law Dictionary, and other online legal dictionaries, I could not find a legal definition for "Facebook Friend."
I would like to create a legal definition for a "Facebook Friend." A "Facebook Friend" is 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.
Some "Facebook Friends" are close friends with whom you keep in touch with on a regular basis. Some "Facebook Friends" are people with whom you have not spoken with for 10-20 years, while others may only be "Facebook Friends" of "Facebook Friends." Some people are "Facebook Friends" with movie stars and other people deemed famous only because a "Friend Request" was sent and accepted.
If a "Friend Request" is accepted and two people are "Facebook Friends" that does not mean that these two people are actual friends or have any contact other than an acceptance of a "Friend Request." A Facebook user has the ability through his or her privacy controls to limit what some "Facebook Friends" are able to view about them. For example, some "Facebook Friends" are able to view personal information about their "Facebook Friends" while others are not.
The reason for creating a legal definition of a "Facebook Friend" is that the U.S. legal system may one day need to create a definition to determine possible attorney or witness conflicts of interest, or jury tampering.
The bottom line is that just because two people are "Facebook Friends" does not mean that either person actually knows each other. In other words, "Facebook Friending" may be just the online equivalent of handing out your business card to a complete stranger. To learn more about this issue you may contact me at www.shearlaw.com
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, December 30, 2009
Juror Facebook Friending During Baltimore Mayor's Trial May Enable Mayor To Receive A New Trial
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.
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 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.
Monday, November 30, 2009
Tweeting May Land You In Prison
The World War II adage, "Loose Lips Sink Ships" applies to Social Media in the 21st century. It appears that Roger Avary, Co-Screenwriter of Pulp Fiction, either never heard of this slogan or never thought his tweets would lead to his incarceration.
Mr. Avary pleaded guilty earlier this year to vehicular manslaughter while intoxicated. Mr. Avary was purportedly driving more than 100 mph when he crashed his car last year. A passenger in his car was killed and his wife was injured in the crash. Even though he was sentenced to prison for his actions, it appears he was instead assigned to a work furlough program. L.A. Times Technology blogger, Mark Milian discovered Mr. Avary's Twitter account and his tweets so he investigated why Mr. Avary was able to tweet when he was scheduled to be in prison without cell phone access. It turned out that Mr. Avary was assigned to a work furlough program instead of prison. Mr. Milian blogged about Mr. Avary's tweets and within several days it appears that Mr. Avary was reassigned to jail.
The old adage "silence is golden" still applies in the age of social media. It appears that Mr. Avary would have been better off if he had kept his mistaken gift of freedom to himself.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Mr. Avary pleaded guilty earlier this year to vehicular manslaughter while intoxicated. Mr. Avary was purportedly driving more than 100 mph when he crashed his car last year. A passenger in his car was killed and his wife was injured in the crash. Even though he was sentenced to prison for his actions, it appears he was instead assigned to a work furlough program. L.A. Times Technology blogger, Mark Milian discovered Mr. Avary's Twitter account and his tweets so he investigated why Mr. Avary was able to tweet when he was scheduled to be in prison without cell phone access. It turned out that Mr. Avary was assigned to a work furlough program instead of prison. Mr. Milian blogged about Mr. Avary's tweets and within several days it appears that Mr. Avary was reassigned to jail.
The old adage "silence is golden" still applies in the age of social media. It appears that Mr. Avary would have been better off if he had kept his mistaken gift of freedom to himself.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, November 29, 2009
The EEOC May Punish Employers Or Insurers Who Review Applicants or Employees' Social Media Posts For Insurance or Personnel Decisions
The Genetic Information Nondiscrimination Act ("GINA") that went into effect on November 21, 2009, prohibits employers from utilizing genetic tests or considering an applicant or employee's genetic background in hiring, firing, or promotions. The main change from the law is that in general, it will prohibit health insurers and employers from asking employees to provide their family medical histories. GINA applies to companies who have more than 15 employees.
The U.S. Equal Employment Opportunity Commission is trying to determine how social media will fit into the law. GINA does not punish employers for obtaining information on workers from traditional or electronic media. However, with the explosion in the use of social media, the EEOC is worried that health insurers and employers will data mine an applicant or employee's social media accounts and utilize the information obtained to discriminate against them.
The easiest way for an applicant or employee to avoid any possible discrimination based upon their genetic background is to avoid discussing their personal or family medical issues on social media. I believe there are some things that better suited for a personal conversation or an email than a social media post. I would like to borrow from the the old Latin derived saying "Let the Buyer Beware" and coin the phrase "Let the Social Media Poster Beware."
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The U.S. Equal Employment Opportunity Commission is trying to determine how social media will fit into the law. GINA does not punish employers for obtaining information on workers from traditional or electronic media. However, with the explosion in the use of social media, the EEOC is worried that health insurers and employers will data mine an applicant or employee's social media accounts and utilize the information obtained to discriminate against them.
The easiest way for an applicant or employee to avoid any possible discrimination based upon their genetic background is to avoid discussing their personal or family medical issues on social media. I believe there are some things that better suited for a personal conversation or an email than a social media post. I would like to borrow from the the old Latin derived saying "Let the Buyer Beware" and coin the phrase "Let the Social Media Poster Beware."
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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