By Neville L. Johnson and Douglas L. Johnson
Here in the digital age, the cyber-social scene is ripe with legal issues that have important implications for the unwary online traveler. Those of us who mingle in the digital scene are in extraordinarily vast company. Facebook boasts over 1.7 billion monthly users; Twitter, 313 million; LinkedIn, 100 million. Over 100 million use Snapchat on a daily basis, consisting of 30% of U.S. “millennials,” sharing 9,000 snaps per second. Yet we do more than just socialize in the digital world: 81% of consum- ers search for online reviews before making a purchase, and 88% of consumers find online reviews to be helpful. What's more, over 80% of millennials are more inclined to hire lawyers who have online reviews, and more broadly, 59% of millennials use online reviews before hiring any professional. On top of this, our communications and “posts” on the Internet are unregulated and largely permanent. The result is a barrage of legal issues that prac- ticing lawyers must be aware of before taking aspects of their practice into cyber-reality.
“The takeaway: though social media posting is easy and seems insignificant, rules of professional conduct with respect to solicitation apply just as forcefully.”
Social media is an effective way to learn detailed personal information about total strangers. It is clear that “friend requesting” judges and represented parties during litigation is improper. As for jurors, however, many courts are not only aware of social media as a potential juror-research tool, but some have gone so far as to condone Internet investigations of jurors.1
Yet it is certainly not a free-for-all, as New York and California alike restrict attorney research of jurors and potential jurors. A 2012 New York City Bar Association opinion2 differentiated between passive and active review of jurors' social media posts, finding that certain methods of obtaining information, such as sending a direct “friend” or “follow” request, could be impermissible communications with jurors as prohibited by Rule 3.5 (prohibiting communica- tions between attorneys and potential jurors during trial). Even viewing a juror's “profile” page where the social media site informs the profile owner of the viewing could amount to a prohibited communication. It is the attorney's responsibility, the opinion warned, to be up to date on the various and often complicated privacy settings of the social media research tools he or she is using to gain information about jurors.
Similarly, California Rule 5-320(E) restricts attorneys' juror investigations to methods that will not influence the juror's service, indicating that the California Bar may also restrict research which reveals to the juror that he or she is being investigated. Yet one California court went even further, requiring that the jurors be instructed on the ex- tent of investigations that the parties and attorneys would conduct on them throughout trial. (Ultimately, the parties took the court's suggestion that they agree to a complete ban on juror investigation.)3
That being said, we recommend investigation of potential jurors prior to their selection and submit that it is the norm.
Social Media Solicitation
What else is social media for but to share our accomplishments, travels, meals, and career achievements with our virtual social circles? As satisfying as it may be to inform our social media “friends” about our latest favorable verdicts, settlement agreements, or scintillating academic pieces, attorneys need to be wary that their cyber self-promotion may constitute unlawful solicitation, prohibited under California and New York professional conduct rules. New York Rule of Professional conduct
§ 7.3 prohibits solicitation initiated by a lawyer that is directed at “a specific recipient or group of recipients,” and California Rule of Professional Conduct § 1-400 similarly prohibits communications advertising the lawyer's availability for employment “regardless of medium” and “directed to the general public or any substantial portion thereof.” Thus, an attorney's Facebook post announcing: “Won a million dollar verdict—Tell your friends and check out my website”, could arguably be deemed an unlawful solicitation under either rule, while one simply stating “Case finally over—Unanimous verdict! Celebrating tonight!” will most likely be permissible.
The takeaway: though social media posting is easy and seems insignificant, rules of professional conduct with respect to solicitation apply just as forcefully.
Client Social Media Clean-Up
Social media accounts are a significant source of evidence at trial due to the magnitude of interactions that occur in the cyber-social scene on a daily basis. Indeed, one's Twitter posting history may provide circumstantial evidence of a crime, constitute an admission or a strong indication of liability, and provide detailed information as to a person's character, hobbies, and everyday where- abouts. Multiple jurisdictions have recognized the impor- tance of social media content in litigation, and removing certain posts, photos, or tags has been found to be gener- ally permissible as long as such removal does not constitute spoliation of evidence.4. In any event, a represented party should switch to a “private” setting, which hides all personal information, photos, posts, and tags from any non-“friend” of the user.
A Virginia State Bar decision is illustrative. In 2013, the Virginia State Bar issued a five-year suspension to Matthew Murray, a lawyer who instructed his client to delete certain photos from his Facebook account, and later, his entire Facebook account, after receiving a Request for Documents from opposing counsel that asked for screenshots of the client's profile page, photos, and his message board.5
On a related matter, although some courts have begun to take judicial notice of the information on private websites, many remain reluctant to do so for screenshots of private websites that have changed since the screenshot was taken.6
Addressing “Unfair” Online Reviews
Not everyone likes his or her lawyer. Disgruntled clients unhappy with the results obtained by their lawyers despite hefty legal bills now have somewhere to turn to express their resentment of their attorneys, the legal system, and society in general. This presents a tricky situation for lawyers who wish to respond to their former clients' criticism, since we are bound by the rules of professional conduct preventing us from revealing any confidential information. The Los Angeles County Bar Association, applying a straightforward analysis of the rules of professional conduct, has stated that an attorney may respond to a former client's Internet posting if the attorney adheres to each of the following: (1) the response does not disclose confidential information; (2) the re- sponse does not injure the former client in a manner in- volving the former representation; and (3) the attorney's response is proportionate and restrained. Similarly, a 2014 New York State Bar Association Ethics Opinion7 held that the “self-defense” exception to the attorney duty of confi- dentiality only applies to official accusations of wrongful conduct where an attorney may reasonably be subject to punishment by the State Bar. Where an “accusation” of incompetence is purely informal, posted on an Internet review site, the attorney must adhere to the traditional duty of confidentiality and all other professional rules of conduct.
Perhaps the New York Committee on Professional Ethics put it best:
Unflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website, are an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice.
Nonetheless, it may be necessary to respond to a negative post, on Yelp, for example. If so, it is important to be aware of and not cross the ethical boundaries.
“The provision passed into law without opposition in 1996 under the guise presented by powerful lobbyists that it would encourage self-regulation by these sites.”
Internet Defamation and § 230 of the Communications Decency Act
Section 230 of the Communications Decency Act forecloses liability for “providers or users of an interactive computer service,” such as review sites, for any defam- ing speech posted on their websites by third parties. The provision passed into law without opposition in 1996 under the guise presented by powerful lobbyists that it would encourage self-regulation by these sites. Of course, self-regulation never occurred. Courts have used § 230 to essentially erect an impenetrable shield around sites where users post reviews and defaming comments. A few examples are illustrative:
• Reit v. Yelp (2010): a New York court allowed Yelp! to selectively remove positive reviews about the plaintiff's dental practice, holding that § 230 pro- tected Yelp's editorial powers;8
• Asia Economic Institute v. Xcentric Ventures (2011):
a California court held that a website could not be held responsible for third-party consumer reports, even where the website mechanically altered them so that they would be more visible to Internet traf- fic;9 and,
• Jones v. Dirty World Entertainment Recordings (2014): a 6th Circuit court refused to hold a website liable whose owners had contributed their own defaming comments directed at the plaintiff, on the grounds that the website had been exercising its “editorial powers” permitted under § 230.10
Moreover, even as plaintiffs attempt to pursue alternative remedies, such as injunctions and alternative tort claims (besides defamation) like negligence, interference with business expectancy, and contractual liability, courts rule that § 230 protects host sites from these claims. There are very few cases where courts have allowed plaintiffs to get around § 230 to hold the host sites liable.11. Indeed, one court held that a particularly aggressive host site, “The Ripoff Report,” was not required to abide by a takedown injunction that the plaintiff obtained against it, because under § 230, Ripoff was not a party to the lawsuit and did not act in active concert with the poster accused of defamation.12
“Since Internet defamation is similarly widespread and arguably more harmful to its victims, there is a strong case for updating § 230 to reflect the DMCA structure.”
However, the California Supreme Court is currently reviewing Yelp's appeal of a lower court order requiring the review site to take down a defamatory post by the former disgruntled client of an attorney.13. The appellate court acknowledged that Yelp was not liable for defama- tion, but found as the administrator of the forum, it bears the responsibility of removal. Yelp, supported by briefs submitted by dozens of other review sites and news organizations, claims that § 230 shields it from having to take down the defamatory post. In light of California's recently enacted Court Rule 8.1105, however, the appellate court ruling is published and is now citable subject to a “prominent notation” that the Supreme Court has granted review.14
Aside from § 230 preventing defamation victims from obtaining recourse against host sites, these victims also face the legal hurdle that the “posters,” the ones who are actually subject to liability for defamation, can remain anonymous and unreachable. Indeed, courts often deny requests to subpoena an anonymous poster's identity from a host site. Some courts have required that the plaintiff proves the cause of action before the host site would be required to turn over evidence pointing to the poster's identity.15
In our dealings with Google, Twitter and Facebook, they have been willing to communicate only by email, and we have been able to get them to take down defamatory posts when there is a judgment finding defamation. However, this is not part of their public policy. Thus, the best remedy for a defamation often is to sue the poster of the defamation, obtain a judgment, and then try and convince the Internet Service Provider to take it down.16
A Solution Found in Copyright Law
One potential solution to the lopsided aftermath of § 230 is to conform it to the structure of the Digital Millennium Copyright Act (DMCA), which dealt with the issue of widespread copyright infringement across the web. The DMCA developed a system of notice and takedown procedures to help minimize pervasive infringement, requiring host sites to respond to takedown notices and actually enforce them under the right circumstances. Since Internet defamation is similarly widespread and arguably more harmful to its victims, there is a strong case for updating § 230 to reflect the DMCA structure. At least victims could avoid some of the crippling harms stemming from unchecked defaming Internet posts that are otherwise mostly permanent.
1. Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010); Carino v. Muenzen, A-5491-08T1 (N.J. Sup. Ct. App. Div. Aug. 30, 2010).
2. NYCBA Formal Opinion 2012-2 (May 30, 2012).
3. Oracle America, Inc. v. Google Inc., 10-03561 (N.D. Cal. Mar. 25, 2016).
4. Professional Ethics of the Florida Bar Opinion 14-1 (June 25, 2015).
5. In the Matter of Matthew B. Murray (July 9, 2013) VSB Nos. 11-070- 088405, 11-070-088422, Disciplinary Board of the Virginia State Bar.
6. The following courts have taken judicial notice of private websites: Doron Precision Systems, Inc. v. FAAC, Inc., 423 F. Supp. 2d 173, 178- 79 (S.D.N.Y. 2006); Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1084 (C.D. Cal. 2001); Pollstar v. Gigmania, 170 F. Supp. 2d 974, 978 (E.D. Cal. 2000) (judicial notice taken of a screenshot of a webpage on a certain day). The following have refused to do so: Mullinax v. United Marketing Group, LLC, 2011 WL 4085933; In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1168 (S.D. Cal. 2010); Ferrington v. McAfee, Inc., 2010 WL 3910169.
7. New York State Bar Association Committee on Professional Ethics Opinion 1032 (October 30, 2014).
8. Reit v. Yelp, 907 N.Y.S.2d 411 (2010).
9. Asia Economic Institute v. Xcentric Ventures, LLC , WL 2469822 (C.D. Cal. 2011).
10. Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. 2014).
11. See, e.g., Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 521 F.3d 1157 (9th Cir. 2008) (finding the host site, Roommates.com, liable for facilitating unlawful user content where the site solicited its users preferences on gender, race, and sexual orientation, and then provided options based on such choices and concealed listings that did not conform); Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016) (holding that § 230 did not bar the plaintiff's claim that the host site (Model Mayhem) was liable for failure to warn where two purported “employers” used the site to lure unsuspecting models to their homes and drug and rape them).
12. Blockowicz v. Williams, 630 F.3d 563 (7th Cir. 2010). 13. Hassel v. Bird, 247 Cal.App.4th 1336 (2016).
14. California Rules of Court § 8.1105.
15. Dendrite International, Inc. v. Doe No. 3 (2001) 342 N.J.Super. 134 (requiring, among four other elements, that the plaintiff provide “sufficient evidence for each element of its claim” before granting the plaintiff's motion to compel); Doe v. Cahill (2005) 884 A.2d 451 (denying the plaintiff's request that the host site comply with a subpoena requesting information about the poster's identity because the plaintiff had not shown that the defamatory comments were capable of a defamatory meaning).
16. Consider also making a demand in countries outside the United States, as § 230 has no extrajudicial effect.
Neville Johnson and Douglas Johnson are entertain- ment and media attorneys in Beverly Hills, CA. Alec Govi, a law clerk at Johnson & Johnson LLP, assisted in preparing this article.
Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Fall 2016, Vol. 27, No. 3, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.