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Please join me at my class with Pacific New Media on Social Media and the Law next week Wednesday, March 6, from 7 – 9pm if you are interested in learning about the applicability of various laws with social media usage. I will be talking about whether you can be fired for using social media, legislative updates, and other various issues that have cropped up when the law tries to get a handle with the likes of Facebook, Twitter, and other communicative platforms.

Click on this link for more details.

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Hey everyone be sure to sign up for a seat at my talk next week on Social Media and the Law. If you missed How to Create a Social Media Policy with Social Media Club Hawaii last week or you made it and still have questions this is a good talk for you:

The details are as follows:

  • What: Social Media and the Law Talk
  • Description: a discussion of the laws that affect social media use, from defamation to trademark infringement, find out some of the legal landmines that may alter your perception of using social media.  This talk is particularly geared for small business owners, start-ups, and social media marketers.
  • Date: Wednesday, March 7th, 2012
  • Where: The Greenhouse Innovation Hub in Kaka’ako – 685 Auahi Street
  • Time: 6:00 – 7:00 p.m.
  • Price: $20.00, includes all materials

For more information and ticket purchase please click here.

See you then!

-RKH

Well, it’s amazing isn’t it? The month of January of 2012 is almost done and so much has already happened. Here are some interesting social media and the law news that I found, as well as some other fun pieces to carry you over for the day until tomorrow’s Draw the Law.

Google and Privacy Concerns (this well continue to be an issue for 2012 for all Social Media)

Have you noticed that Goolge is making some major pushes lately?  Well come March 1 the search engine plans on doing a turnabout and begin combining information it collects about the user from various sites/services into a single profile. Definitely a privacy issue brewing, especially when the privacy officer has to issue statements. Click: Google to merge user data across its services – CNN.com You can also read the lengthy notification, which you keep bypassing when you log onto your Google+ page.

GPS = 4th Amendment “Search” as Determined by SCOTUS

For all of you interested in criminal law, like Marcus Landsberg criminal lawyer extraordinaire, notice that the Supreme Court- GPS Tracking Is Illegal Without Warrant. Basically, SCOTUS feels that the use of a GPS Tracking device is a “search” for the purposes of the 4th Amendment, thus cops must get a warrant.

Mutant Toys or Mutant Dolls? Yes, it Matters

This was a great listen if you love comic books and would like to theorize that certain superheroes are not human. Basically, the point of this podcast: Mutant Rights – Radiolab, was showing the importance of the word “doll” versus “toy” – you may not think it means much, but if you are an IP attorney and have an import business getting a cheaper rate for your action figures is a must and it all boils down to if a mutant is a human or not.

Department of Homeland Security Following Facebook Posts

Earlier this month DHS released a document stating it is monitoring social media and news sites. They cited federal law that they have to “provide situational awareness” to federal, state, local and tribal governments. You can read more about this here: DHS watching social media, news sites | Greeley Gazette.

NLRB Finds Certain Arbitration Clauses Violate Labor Laws

The National Labor Relations Board (NLRB) has determined that mandatory arbitration agreements that prevent employees from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court violate federal labor laws. Check that announcement here: Board finds that certain mandatory arbitration agreements violate federal labor law.

Local Startup and Social Media Infromation

For you startup lovers, don’t forget tomorrow night will be Startup Hawaii kickoff. For more information, check it out here: Startup America Comes to Hawaii | Aloha StartUps. It will be at Bar 35 downtown. Definitely come on down if you started or are going to start a business!

Also check back at Alohastartups.com as I will be writing some future posts talking about Hawaii’s new legal non-profit aimed at helping entrepreneurs and startups, Business Law Corp. (businesslawcorps.org). I hope to get some interviews with the founders soon!

Finally, clear sometime in February as I will be getting down with Social Media and the Law as I will be trying to schedule a talk at The Greenhouse Innovation Hub and will be a panelists at Social Media Club Hawaii’s Creating a social media policy for business – what, how and when? event at Amuse Wine Bar on Feb. 21st. Hope to see you there!


Well, it’s 2012, but social media is still around and as you are trying to figure out how Timeline works on Facebook these are some of the interesting social media and the law stories that have cropped up:

Item #1: Who Owns a Twitter account?

A former employee is being sued by his South-Carolina based company. For? Taking their twitter account. Noah Kravitz of Oakland, CA is being sued by PhoneDog, a mobile phone news site company for multiple claims pertaining to his act of switching a Twitter account used by him for the company. This account had amassed a following of 17,000 followers, and PhoneDog is seeking damages of $2.50 per follower over eight months for a total of $340,000.

Based on the couple of articles I read on this story the only thing clear is that the terms agreement surrounding the account were unclear. As more and more companies continue to see social media as a valuable tool and resource and are actually having workers use them the reality is that we will see more lawsuits arise. I think the valuable lesson here is to have a social media policy, a worker agreement for social media marketers, and transfer procedures in cases of ending events, like termination. Without agreements in place you will be left at the mercy of a court.

You can read more about the situation in this New York Times article.

Item #2: Bloggers are NOT Journalists.

BLOGGERS PAY ATTENTION! You may think you dig up the facts, do solid research, and ask serious questions, but you may have to face the fact that courts may not see your as a journalist. Why is that important? In many states there are media shield laws. For example, Oregon has such a law.

Blogger Crystal Cox sought to defend herself from investment firm Obsidian Finance Group against a $10 million lawsuit for defamation. The blogger lost the case even though she argued that she was an “investigative blogger.” The judge disagreed because she was not employed by some official media entity, and therefore she could not take advantage of Oregon’s media shield law. She lost and the judgment against her was for $2.5 million.

I am not sure if this had any effect, but just from casual observation and what I am told from litigators and trial attorneys is that pro se (representing yourself) litigants often lose, and often lose badly.  So that may have been a factor. However, what is clear is that just blogging and acting like a journalist is not enough. For more info read this article from Seattle Weekly.

Item #3: Optimal Social Media Marketing Plans Can Help you Comply with CAN-SPAM Act

I ran across this post, “How to Make Optimum Use of Social Media Platforms for Marketing Your Business” while flipping through my Zite app on my IPad. If you are a small business like me and are trying to get a handle on this thing called social media you know it isn’t always easy making a connection via Twitter, Facebook, or even your blog. So I really appreciated the tips it gave in this short post.

However, when the biggest things that help me to help you (via this article) is that last section, “Automation doesn’t turn out to be Helpful Always” – why? Well, I did a Law Lunch with The Greenhouse Innovation Hub back in December where I talked about complying with the CAN-SPAM Act.  It seems that good marketing mirrors what CAN-SPAM Act is trying to curb namely:

Whenever you are searching for consumers, you need to strike real conversations and do not spam their inbox with auto-generated mails.  This can even turn a potential customer away from you.  It is necessary that you engage in regular conversations with qualified leads.

So do yourself a favor and stop relying on spam and do real conversations and follow-ups. In addition, make sure you are complying with the other requirements of CAN-SPAM Act (because it does not apply just to bulk e-mails) when sending that personal touch e-mail.

Have a great first work week of 2012! Lookout for Draw the Law next week. If you can’t wait to see my doodles “Subscribe” today!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.


Aloha Everyone!

Hope you are having an awesome Friday for this last aloha Friday of 2011. I just wanted to take the time, as I close out for the day to wish you all a happy and safe New Year’s Eve and for a start of a good New Year. In addition, I would like to thank all my friends, acquaintances, clients, readers, supporters, and yes even my Twitter followers for making 2011 a good start for me.

Storytelling in 2011 

I appreciate getting to know you all in the various settings that I have and welcome meeting new people and reconnecting with old friends whether it be in social media, IRL networking, or for coffee. Also thank you for allowing me to tell you all my story and journey of an attorney that loves the intersection of law, business, and politics in the realm of small business and startups.

Past Highlights 

I would like to highlight thanks to all of you for the positive feedback regarding this site and my services. In particular, I would like to continue to make this site a place a resource for small businesses and startups navigating transactional and compliance issues. Thus from this 2011 you will continue to see posts series like the following:

Because I care about the Hawaii community and am finding that I meet new people of this great state via social media I will continue to do special write-ups on:

New Features for 2012 

Although like all good growing businesses, their ideas change and grow I will be rolling out new features and ways to get information into struggling business owners’ hands. In fact, I’ll admit that being an attorney who just started going solo there were times I wish there were resources for me, and there were, but I will continue to try to deliver information to the people who want its and need it. I would like to thank various people and organizations that have given me feedback before I talk about my 2012 features.

First the Thank Yous

Thank you to my friends at Off-Menu Catering, all of you give so much support and thoughtful feed back to carry me through continuing to serve small business.

Thank you to The Greenhouse: Innovation Hub and in particular Doc Rock (@docrock) and John Garcia (@johngarcia) for creativity and inspiration, Jill (@swamwine) of SWAM, Danny (@wangchungs) of Wang Chung’s, and Shawn of Small Business Planning Hawaii (@SBPHawaii) for bouncing ideas off of to deliver services and information to small business owners. Melissa Chang (@Melissa808), Jennifer Lieu (@jlieu), and Capsun Poe (@capsun) always guiding lights for social media use.

Mahalo to the Young Lawyers Division, HSBA, and Leadership Institute for providing guidance to an attorney.  To fellow attorneys Wayne J. Chi and Scott C. Suzuki thank you for doing talks with me, some more planned in the future! To William (@alohastartups) of Alohastartups.com, much thanks as you are providing a great resource for startups in Hawaii and I am excited for the plan in 2012. However, I think I still owe you a post from 2011! Thanks to Rechung (@TheBoxJelly) of The Box Jelly for providing a space for legal talks and helping Hawaii coworkers.

Finally, thank you to Marcus Landsberg, a fellow Hawaii attorney that has helped out and set down this path of being a solo practitioner like me and showing that solo does not mean alone.

. . . Back to New Features of 2012

Ok, enough with the thank yous and let me get to the new features that you readers can look forward to from me in 2012 for this site in particular:

  • PODCASTS – that’s right Hawaii small business owners, no worries if you cannot make it down to one of my talks! I will be providing portions of them for you to watch in your store or at home.
  • One-sheets – simple pdfs talking about one particular issue for you to download, print, and share.
  • Newsletter – I am not sure what the frequency will be, but definitely watch your e-mail inboxes!
  • REVAMP of blog and website – I will be shifting gears and making sure that I deliver to you content in a more user-friendly style!

That’s it for this year! Have fun and be safe this New Year’s Eve and see you in 2012 (Year of the Dragon!).

-RKH

In the last post I talked about using social media as evidence and its legal relevancy to the litigation process.  Today’s post will be full of legalese, but my blawg is designed to help entrepreneurs of all types and that includes my fellow solopreneurs and small law firm attorneys.  As always, I will be discussing today’s subject in general and informative terms, and any procedural stuff will be with respect to Federal Rules.

Therefore, if you are a non-lawyer feel free to stick around, but today’s information is geared to others in the legal profession.  I thank you for stopping by and I will soon be getting back to some relevant posts to general small business situations.  However, before you go be aware that there are certain ethical rules that lawyers and those attached to them must follow.  For example, a lawyer cannot pose as a fictitious person and friend you on Facebook to get your information.

That being said just remember you should always be guarded about what you put out for the public using social media. Have a review process and if you have questions feel free to check my earlier posts on Social Media Policy.

Areas of the Law and Social Media as Evidence

Social media evidence has found a place in criminal and divorce (especially, with the flirtations that go back and forth between people).  It also has great use with corporate and employment law. Social media is good for providing alibis for criminal proceedings, discrediting a witness, and investigating people that are a part of the case.

In terms of torts, corporate blogs and statements put out by employees are great for products liability and personal injury situations.  While disputes of discrimination, emotional distress, and workers’ compensation fraud cases are backed up with Facebook pictures and Twitter posts.  Many bloggers use pictures, clips, and text freely from IP covered sources.

Some cases to consider:

  • EEOC v. Simple Storage Mgmt (2010) – refuting a claim of emotional distress from discriminatory conduct
  • TEKsystems, Inc. v. Hammernick (2010) – where plaintiff alleges that defendants violated a non-solicit agreement via their LinkedIn account

When to Gather Evidence

Consider poking around early.  If  you think your client may be sued or wants to sue someone else see what the opposing side has already put out there.  Basically, find out what you freely can about your opponent.  If they regularly use social media, consider it an opportunity to get information on them for free.  Once litigation commences, posts get deleted, privacy settings get set to maximum, and the ease of just screen-capping or printing a webpage is gone.

The flip side is that once discovery commences you will be allowed to use more formal methods to try and compel social media evidence.  Some ideas on the procedural formalities:

  • Interrogatories – should be used to identify the opponent’s screen or avatar names and the underlying social media account that is connected to each of those names;
  • Requests for production – should seek blog entries and postings, and if you can, use the date and timestamp connect to them;
  • Requests for admission – these should then be designed to backup and authenticate any such information gathered.

A Rule 26(f) conference should lay out the ground rules for social media production.

Defending Your Use of Social Media as Evidence

Watch how people connected you talk about your products and services. Make sure employees and paid bloggers disclose anything you gave them in connection with touting your business's products and services.

Be prepared to defend all of that valuable evidence that you have discovered.  I discussed relevancy last week, but also hearsay and authentication enter into the equation.  Normally, it is sufficient that the witness who has personal knowledge that the evidence is in fact what it is purported to be.  Courts have accepted that website printouts need not be authenticated by the original poster or the site’s owner, but by an attorney that testified that they visited the site, recognized it as opposing party’s, and printed the screen. (Jarritos, Inc. v. Los Jarritos)(2007)

In general, for authentication issues, ask yourself the following two questions:

  1. Whether the exhibit is really a printout from the site you are claiming it to be from?
  2. And whether the printout can be satisfactorily shown to have arisen from the where you are claiming it came from?

For a more in-depth look at authentication of social media the ABA has provided an excellent article on the matter written by David I. Schoen and can be found here.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

Next time I will continue looking at other issues of using social media as evidence.  Namely, collecting and then preserving it.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

New Series of Posts: Social Media and the Law

Later today I will be posting the first in a series of posts detailing Social Media and its interaction with the law.  Generally, it is geared toward small businesses, law students, and social media users.  In particular, for those groups of people living, working, and playing in Hawaii. However, everyone is welcome to read for their own education.

Let me give you a quick overview of the five major topic areas that I will be covering in posts over the next couple of months. They are as follows:

  1. Social Media and the Workplace
  2. Creating and Implementing a Social Media Policy
  3. Using Social Media as Evidence
  4. Social Media and Legal Miscellany

Today’s post will be under Social Media and the Workplace, specifically the hiring and background checks of potential employees by employers.  Please note that I will be switching the schedule of my postings.  The Social Media and the Law posts will come out Mondays or Tuesdays of the week and Draw the Law will be on Fridays or Saturdays of the week.

In the mean time, look below and check out some interesting facts on social media.

Just Some Facts about Social Media

Social media is quickly becoming a part of our everyday lives.  Many of us check our social media accounts at least once during the day.  Here are a few interesting facts:  (1) Facebook has more than 500 million active users and 50% of their active users log on Facebook in any given day (Source: Facebook) and (2) Twitter users send out about 55 million Tweets per day.  All of that adds up to an avalanche of information. (Source: DigitalBuzzBlog)

For some more interesting facts, information, and graphics from other sources on social media check out the following links:

From the beginning of my pursuit of a legal career I have been highly addicted to using social media to organize and set-up events.  I see no reason why lawyers should not embrace the the sharing of information in a medium that their clients readily use on a daily basis.  The number one complaint by many clients is lack of communication.  So long as we uphold and abide by the legal ethics that guide our profession we can use social media and technology in a thoughtful and meaningful life to better educate the public and our own profession.
Thus begins the journey of my career and blawg.

-RKH