What The Heck Does A Social Media Lawyer Do Anyway?

Read all these law books and you probably won’t find a single case dealing with social media. You’ll probably also go a bit blind from all that reading.

You may have asked yourself this very question when coming across this blog, mostly because you enjoy swearing like you’re in a 1950s movie.  When I tell people I’m a social media lawyer I typically get one of two reactions:

1. “Really?  What does a social media lawyer do?”, or
2. “That’s nice.  Would you like anything with your triple grande skinny mocha?”

For the second group I usually just shake my head and pay.  They’re the easy group.  Because it’s a bit harder to explain to the first group what a social media lawyer does.

Not that this is a unique problem for social media lawyers; it’s a difficult question for any lawyer to answer.  If you have a litigation or criminal law position you might be able to reference some TV shows to help illustrate what you do (well, what you do maybe 2% of the time) but for social media attorneys or in-house counsel or both, that’s a bit trickier.

Most of my day is spent like a lot of other business people: emails, meetings, phone calls.  What differs is the subject matter.  In my case, social media is just one of the large groups I support in my daily job and my conversations about the topic can range from specific questions about planned activities to general overviews on a topic to training sessions.

Obviously I’m a bit biased on the subject, but I truly believe that social media is a communications revolution.  It isn’t just a blip on the radar or something that people should watch out for, social media is technology finally delivering on the promise of the Internet.  The Web was our first taste, but it was just a faster way of getting the same content we saw in books or magazines or newspapers (remember those?).  Email was amazing because of the speed of sending content around the world.  But none of these were new or revolutionary like social media.

To be clear, when I talk about social media I’m talking about tools and services that facilitate conversation over the Internet.  That’s not just my definition, but it’s the short version of how Wikipedia defines it as well.  This makes it bigger than just social platforms like Facebook and Twitter although they are certainly a big part of the revolution.

I also see social media as revolutionary because true revolutions change a lot of things, not just the thing being changed.  When your operating system gets updated that can have a lot of nice features, and maybe a few applications change too, but that’s not a revolution like social media.  The last ten years have been a sea change in terms of online content, activities, and behaviors.

The law, too, is noticing this change.  It’s starting in subtle ways but social media is working its way into all branches of law.  I realized this change when I first started working in social media professionally but it was only this year that I thought about putting together a proposal to teach a class about the subject.  I received news last week that the proposal was accepted so I’ll be teaching a class about Social Media and the Law at the University of Texas School of Law in their spring semester.  I’ll probably be talking about that more as the time approaches, since what better way to teach about social media than to have social media influence the course itself?  But I also thought I could use the proposal to help explain what issues a social media attorney looks at in their jobs.  Obviously this is a high-level view of some of those topics and I’m not going to go into details of specific projects I’ve worked on or questions I’ve answered, but if you’re ever a contestant on Jeopardy and the answer comes up “This is what a social media lawyer does” you are totally going to nail it after reading this post.

For the class I’ll be teaching I’ve created 12 content modules.  Here’s what they are and what issues I see emerging under them.  If people are interested (let me know in the comments) I may post some more information here about the cases I’ll use to teach the issues.  But otherwise I feel like these topics cover about 90% of the conversations I have as a social media lawyer.

Social Media Overview and Categorizing Legal Risks

This is your classic introduction module to make sure all the students have the same basic knowledge.  Actually, I’m very interested to see what level of familiarity the students will have–I’ve heard anecdotally that law students use Facebook a lot during lectures, which will make my class a bit interesting.  Categorizing legal risks will start breaking down social media issues into the three categories I generally use for the subject: internal (social media used within an organization), hosted (public social media controlled by an organization), and public (public social media outside the control of an organization).

Limiting Legal Risks: Terms and Conditions, Social Media Policies

I’ve blogged about this a few times (starting way back here) but once you understand the categories of risks then it’s a question of minimizing those risks.  If it’s your organization or employee risks you’re worried about then you use a social media policy and training.  If the risks come from outside your organization then you can minimize those risks with some terms and conditions.  You can actually learn a lot about how a social platform views its own risks by reading its terms (which you should do anyway, if you use it).

Corporate Social Media

It’s hard to give law students an accurate portrayal of life in a big law firm but I can show them a bit of the in-house life when it comes to social media.  Here I’m hoping to give the students a tour of the social media and communities space over at Dell, including our awesome Listening Command Center.  This can help put into context the issues that a corporation faces with social media and how lawyers can be helpful.

Copyright

The rise of network computing has already created massive problems for controlling the distribution of owned content.  Now with so many different ways to consume media, not to mention content that individuals may create and license to different platforms, is copyright officially dead?

Privacy

For years we’ve seen a huge difference in how the US treats privacy versus how the EU and individual European nations view privacy.  Are those views starting to come together?  And what does privacy even mean in the age of social media?

Marketing

Marketing is where the rubber meets the road when it comes to social media regulation–it’s where large corporations will typically spend a lot of money for content that is seen by consumers, the group that most governments want to protect.  So it’s typically the first place where you see new technologies or techniques get regulated and that’s true in social media as well with the FTC Endorsement Guidelines and some key cases showing how social media can be used to deceive consumers.

Contests and Promotions

A subset of marketing, this topic still has enough examples to warrant its own module (heck, I’m even co-chairing a two-day conference on just this subject).  There are plenty of rules around contests and promotions from the pre-social media days and now a number of new rules being applied by platforms and cases.

Employment

This is a two-pronged issue–how do employers use social media in making employment decisions (hiring/firing) and what should employees (potential or actual) know about their usage of social media?

Rights of Publicity

This is just a fun topic and social media is breathing new life into it.  I’ve blogged about it a few times (as in Celebrities Are Better Than You, Legally Speaking) but these are special rights celebrities get here in the United States (other countries use different laws or legal theories to grant some of the same rights).  These rights have been greatly expanded over the last several decades and they impact social media as well.

Free Speech

How do free speech rights work with platform restrictions?  What about with different countries that may be more accepting of censorship (that’s my nice way of putting it)?

Legal Ethics

Yes, these exist.  And social media has some serious implications for ethical use by attorneys in their personal and professional lives.

Brand Damage and the Role of Attorneys

We’ve all seen the horror stories of brands who did something less-than-intelligent on social media.  This topic will be more about how lawyers play into that equation (either in causing or preventing the screw-up) and how lawyers are typically involved in the aftermath.

 

Let me know in the comments if any of these topics are of particular interest and maybe we’ll start talking about the cases I’ll use to teach the subject.  I won’t give you all my content–that’s for the students, after all–but I’m certainly open to suggestions as well (and I’ll give you credit in the class).