January 23, 2014

Our Mini-Theme: Social Media and Business Law – People Get Ready, There’s a Train a’comin’

Jeffrey Rubin

The explosion of the use of social media has affected many aspects of our lives, and the relationship of social media to business law is no exception. In virtually every area of practice, social media have been a curse or a blessing, and sometimes both.  The benefit social media provides by enabling the immediate dissemination of information to a large number of people and the ability to obtain vast amounts of information though social networks, is also a potential trap, exposing attorneys and their clients to a wide range of potential liabilities.  And this area is very dynamic – as the use of social media expands, legislatures, courts, regulatory agencies, and other entities are rushing to grapple with the issues social media present while at the same time trying to anticipate developing practices that may implicate their mandates.

In this issue, we will explore four facets of the effect of social media on business law.

In the Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, Jonathan Gworek discusses the use of social media as part of the M&A diligence process, and the threats to transactional confidentiality posed by social media due diligence, such as a potential acquirer’s employee’s becoming aware of multiple LinkedIn reviews of his or her profile by persons associated with the target company and potential breach of contract claims from lost confidentiality.  In his article, Jonathan provides some possible solutions, and discusses as well some related issues.

In 10 Tips for Avoiding Ethical Lapses When Using Social Media, Christina Vassiliou Harvey, Mac R. McCoy, and Brook Sneath focus on legal ethics issues, and discuss a range of considerations applicable to the use of social media by lawyers, including whether postings by lawyers may constitute legal advertising or prohibited solicitations, implicate duties of confidentiality, or constitute impermissible communications with represented parties or unrepresented third parties. The tips are far-ranging, and also address whether online activities may be deemed to constitute the unlicensed practice of law, and whether it is proper to “friend” a judge.

In Discovery and Preservation of Social-Media Evidence, Margaret (Molly) DiBianca discusses the role of social media as a source of evidence, and the duties that arise from that role, including the obligation to preserve social media evidence, social media discovery, and the means by which social media can be accessed.  The burgeoning of social media has changes the landscape of much litigation discovery and, as the article notes, parties and counsel are well advised to adjust their thinking so that social media is seen as just another type of electronically stored information.

In Privacy and Social Media, Ted Claypoole reviews some of the implications arising from the sharing of personal information through social media sites, and some of the recent legislative and regulatory efforts to address perceived problems in this area, including misrepresentation of privacy policies, consequences of security breaches, rights of employers to access and monitor employee presence on social media sites, disclosures about tracking policies, and a recent effort in California to enable younger users to delete their posts from social media sites.

We hope that you find these articles to be of interest to you, both in your practices and in your personal lives.

I would like to express my appreciation to Ann Yvonne Walker for her assistance in assembling this issue.

Additional Resources

For other materials on this topic, please refer to the following.

Business Law Today

Ethics Update: Lawyers Must Keep Up With Technology Too
By Lois D. Mermelstein
March 2013 

The NLRB's Evolving Stance on Regulating Employee Social Media Use
By Susy Hassan
November 20, 2011 

Retaining and Supervising Social Media Communications under New FINRA Regulatory Notice 11-39
By Philip J. Favro
November 20, 2011

Jeffrey Rubin