John D. Gregory
Ministry of the Attorney General (Ontario)
October 29, 2012
Overview
 Introduction
 Communications
 Security
 Employment
 Evidence
 Government
 Personal
 Conclusion
John D. Gregory
Social Media Law
2
Introduction
 Definition
 A plea from my high-school Latin teacher
 Media: neuter plural
 Extremely varied in operation, impact
 Free
 Diverse users
 Interactive (web 2.0)
 Much user-generated content
 Characteristics
 ‘Public intimacy’, immediacy, collaboration
 Maybe anonymity
 Enforcement of legal rights can be hard or hazardous
John D. Gregory
Social Media Law
3
Communications
 The usual rules apply
 Defamation
 Intellectual property

EU Court: move from ‘substantial copy’ test
 Harassment
 Privacy
 Misrepresentation – civil and criminal (fraud)
 Cyber-bullying may be next (if not already barred)
 Liability of intermediaries is not resolved
 Interaction of providers and law enforcement
John D. Gregory
Social Media Law
4
Security
 Social media are in the cloud
 So risks are similar to discussion that follows
 Open to the world – decentralized and mobile
 A lot of celebrities have been hacked (8/10 of ‘most




followed’ on Twitter) or impersonated
A lot of people have very weak security
Social media sites may not offer much security
Lend themselves to social engineering attacks
Impact of BYOD (bring your own device) policies
John D. Gregory
Social Media Law
5
Employment
 Who owns rights?
 Who owns Twitter followers? LinkedIn profile?
 Right to monitor employees:
 Manage expectations
 General use of social media in recruiting
 Disclosure of passwords (BAD idea)
 Solicitor-client privilege in employer systems
 Employee use of personal sites
 Free speech vs ‘loyalty’; watch who you friend
 dismissal, actions for poisoned work environment
 Regulatory issues for employers e.g. illegal disclosures
John D. Gregory
Social Media Law
6
Evidence
 Issues of proof in general = other electronic evidence
 Evolving, authentication likely to get more complex
 Whose content is subject to e-discovery?
 How closely linked to employer etc
 Admissibility
 Facebook discovery cases (s.m. often red herring)
 Wikipedia cases (watch the history, discussion)
 Use of social media in the courtroom
 Notably by jurors for comment, for research
John D. Gregory
Social Media Law
7
Government
 Ontario Deputy Ministers instructed to ‘engage’ with Twitter
 Mainly a ‘push’ use – links to existing or new content
 Need for bilingual tweets
 Limits to interactivity (four levels of approval)
 Some potential for interaction with known stakeholders
 Authentication of those we hear from?
 No legal advice (and limited ability to disclaim)
 Appropriateness of private communication via social channels
 Reluctance re personal exposure of public servants
 Concerns about comments on publications (e.g. blogs)
 TOU of social media sites: indemnities and immunities
problematic
John D. Gregory
Social Media Law
8
Personal
 Digital assets on death
 Many social media close out account and delete contents
on death
 Ability of executor to access data (of value) limited by
terms of use, practicalities
 Use of ‘lost password’ function if basic access OK
 Secret content – online as off
 Private services like Legacy Locker (but effective?)
 Legislation in US – states and uniform
John D. Gregory
Social Media Law
9
Conclusions
 Everything old is new again
 Mix of personal and professional creates risks (and the





fun)
Social does not mean to be taken casually
User-generated content is large source of risk
Privacy issues are important and unresolved
Marketing rules (e.g. lawyer advertising) are relevant
Businesses (and law firms) need a careful
comprehensive plan for company and employee uses
John D. Gregory
Social Media Law
10