Social Media gets legal
Here are a couple of social media-related legal stories the blew up last week, which we are reporting out of interest…
Kim Walker, Data Protection Partner for law firm Thomas Eggar LLP provides Facebook users with advice on protecting their privacy before their Timeline goes live: Facebook has long been a source of information for employers checking the background on potential and current employees and making sure that social media policies are not being over-stepped with derogatory comments.
Once Timeline is enabled, Facebook users receive a Timeline page which scrolls down to reveal key information shared since they joined the online community. Click on a chosen year and you can view everything the user did in that particular year – good and bad! For employees, I would strongly recommend a quick check back through their Timeline during the seven day preview period that is allowed once Timeline is enabled and before it goes live. Comments and posts that may not be viewed in the best light by employers can quickly be deleted alongside photography and information that may not present users in the best light.
In general we advise employers not to look at social media pages unless they have got a particular suspicion about an employee. If you don't need to look then you should not really be fishing. In addition, in most cases what are employers actually going to learn? Companies are unlikely to be able to dismiss or discipline someone who likes to go out and have a few drinks at the weekend unless it actually impacts on their day job.
The other obvious potential issue of Timeline for employers would be if they found a post which is several years old and breached their social media policy. However, as it was not picked up on at the time it was originally posted, the employee may well argue that it is now too late to take action fairly.
Equally, for those seeking employment it is worth ensuring the Timeline presents them in a way that will appeal to prospective employers. Be wary of any inflammatory comments or colourful past behaviour which may dent otherwise gleaming professional records. Employers are increasingly using online communities such as Facebook and LinkedIn to research candidates so it is worth investing time in ensuring Timeline presents a positive profile.
As well as the personal angle, businesses using Facebook profiles to promote their companies will also have to consider the impact of Timeline. Customer complaints or negative posts could make an untimely reappearance in the Timeline. The new feature will also make it harder to consign adverse publicity to history, especially if others are keen to keep it alive. Again, these issues can all be managed and averted but better to do so before the interface goes live and impacts on any current marketing campaigns.
Most importantly, users should reassess the privacy settings on their Facebook profiles before their Timeline goes live. The audience for old posts that appear on the Timeline can be limited and there is even the option to individually change the audience of each post if required. While Timeline makes Facebook history more immediately visible than before, it is not sharing any content that couldn’t previously have been found. It is therefore the responsibility of users to ensure they have the correct privacy levels set and manage the information shared on their Timeline as they see fit.
Comment: And don't forget Facebook intends to roll out Timeline to all its users, whether they like it or not.
Bar takes action over barrister's wrists
Andrew Sharpe, LexisPSL Lawyer (and prominent legal tweeter @TMT_Lawyer) has produced the following commentary on the Bar Standard’s Board’s decision to fine David Harris (aka @GeekLawyer) £2500 for inappropriate use of the micro-blogging site Twitter.
One of the earliest legal adopters of Twitter in the UK was the person behind the account @GeekLawyer, who gave a colourful account of the life of a barrister in the South East of England. For many years followers of @Geeklawyer were entertained by some ribald commentary and banter; just the sort of thing that makes Twitter attractive for some. Whether or not @GeekLawyer was fictional was not a concern.
Matters changed last week, when the very real David Harris was brought before the Bar Standards Board on a number of charges, which included a charge that he had ‘engaged in conduct which was likely to diminish public confidence in the legal profession… via the internet site “Twitter” and using the pseudonym “Geeklawyer”….’ The decision of the BSB was published on 26 January 2012, which showed that David was fined £2,500 for his inappropriate use of Twitter. Here is the link to the decision http://www.barstandardsboard.org.uk/complaints-and-professional-conduct/disciplinary-tribunals-and-findings/disciplinary-findings/?DisciplineID=75521
Understandably, given that the messages to which the charge related have not yet been published, this has caused a certain flurry of interest and concern within the legal twittering community. Some have focussed on the point that lawyers cannot expect to hide behind anonymous accounts (eg @TheTimeBlawg), but the other concern must be the approach that lawyers’ regulatory bodies will take to the normal exchanges on Twitter.
Both the Bars Standards Board and Solicitors’ Regulation Authority have similar public confidence in the legal profession provisions in their Codes of Conduct.
The Bar Standards Board Code of Conduct states:
Applicable to all barristers
301. A barrister must have regard to paragraph 104 and must not:
(a) engage in conduct whether in pursuit of his profession or otherwise which is:
(i) dishonest or otherwise discreditable to a barrister;
(ii) prejudicial to the administration of justice; or
(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;
(b) engage directly or indirectly in any occupation if his association with that occupation may adversely affect the reputation of the Bar or in the case of a practising barrister prejudice his ability to attend properly to his practice.
The Solicitors’ Regulation Authority Code of Conduct includes a set of core principles. Principle 6 (and the SRA note upon it) states:
Principle 6: You must behave in a way that maintains the trust the public places in you and in the provision of legal services.
2.10 Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but also the ability of the legal profession as a whole to serve society.
Clearly, the issue here is the interpretation that will be placed upon these provisions by the regulators. Solicitors looking for guidance can only turn to the Law Society’s Social Media practice note published on 20 December 2011. However, in the context of the SRA Principles and where the dividing line may be between critical communications and behaviour that undermines public trust, the practice note is of little assistance. The danger is that lawyers may consider the risks of going over the line are too great, and so withdraw from public debate; the so-called chilling effect. Even if individual lawyers may be confident of their use of social media, compliance officers at law firms may be more circumspect.
To give a concrete example, I and many others were highly critical of the charging, prosecution and conviction of Paul Chambers as a result of his tweet about blowing up Doncaster Airport in January 2010, which criticism continued when his appeal against conviction failed. It could easily be argued by an over-zealous regulator that such volume of criticism from lawyers who, until the case is heard at Court of Appeal, could be considered to be ‘wrong’, undermines the public’s trust in the legal profession to apply properly the will and intention of Parliament as set out in the relevant statutory provision. In the so-called Twitter Joke Trial case, many of us consider that section 127 of the Communications Act 2003 was used completely inappropriately to prosecute Chambers.