Few transformations have affected litigation and litigators as swiftly and as profoundly as social media. In five short years, we’ve seen a sea change in the way people live, connect, and do business across the Internet. “Web 2.0,” a term referring to Internet use that goes beyond merely retrieving information from websites, includes entirely new ways to create content and share information through online social networking. In addition to pervading most of our lives, the social media phenomenon is having a profound effect on every stage of litigation and in virtually every area of practice.
Social media have become a big part of the way litigators do business, and they pose problems in the litigation process from the first time lawyers meet with their clients until after judgment is rendered. They affect criminal, civil, and family law litigators alike. They are brimming with potential and fraught with danger for both the unwary lawyer and client.
We read about a New England Patriots cheerleader fired for being seen in a Facebook photo posing with an unconscious man covered in offensive graffiti, a Canadian sportscaster whose contract was terminated after he tweeted his opposition to changing the definition of marriage, and British flight attendants who were sacked for posting unflattering comments about passengers on their blog. We have heard about employers demanding that interviewees surrender their Facebook login names and passwords—and their private lives. The reality of being fired for something you’ve posted, blogged, or tweeted has entered the popular consciousness to such an extent that there’s now a word for it: getting “dooced.” We have read news reports about rights holders, especially trademark owners, whose policing and enforcement activities have backfired badly when their tactics were picked up on social media and went viral.
Social media can offer both powerful and risky tools for litigators. We provide some vignettes based on our experience, the news, and reported cases that we hope will give litigators some guidance as they try to navigate the uncharted and potentially treacherous waters that social media present.