Category Archives: Employment

So You Want To See A Social Media Law Final? (2016 Edition)

Hamilton-Poster

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

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Oh Hey, Want To See A Great Social Media Law Final Answer?

Final-examsThis is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog.  I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer.  I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year.  Worth Carroll wrote the answer so all credit to him.  If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently?  When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well.  Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions.  Take a read after the break and see if you agree.

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So You Want To See A Social Media Law Final? (2015 Edition)

Readers who were smart enough not to attend law school (congrats on that!) may not realize that a law school final is serious business.  The vast majority of your classes during those three years will have you reading and discussing cases and listening to a professor for an entire semester; then you get one test and that’s your grade.  No repeats.  No making it up down the road.  One and done.  Scary stuff.

Readers of this (increasingly infrequent, sorry) blog also know that I teach a class on Social Media Law at the University of Texas School of Law.  This past year was the third time I offered the class and it’s always interesting to see the issues that have emerged from year to year or even during the year I’m teaching.  I also spend a lot of time thinking about the final, both because I want it to be interested and because I want the students to have ample opportunity to show what they’ve learned over the entire semester.

Below is the final from my 2015 class.  (Here’s the final from last year and here’s the final from 2013 if you’re curious.)  I wanted to post it now to give you some time to think about it (or discuss in the comments).  Later I’ll post what ended up being the top grade in the class’ answer (yes, I asked for and received permission to post it).

Before I get into the text of the final, let me thank the inspiration for elements of these questions: my work SMaC team for pulling social media lessons from the movie Chef, the movie Real Genius, my youngest son Isaac who thinks “Poo-poo” is the funniest word ever (he’s not wrong), and many real world examples that I tweaked for this exam.

And now, the final exam:

QUESTION ONE

Fresh out of law school and after passing your Bar exam, you are quickly snapped up by a hot new company called Pop-Up Pop-Ups (PU2).  PU2 has a unique business model where they partner with other companies to create mobile marketing experiences.  In the past, PU2 has worked with a volleyball company to hold an impromptu volleyball tournament in the middle of a city block.  PU2 has also worked with fashion companies to hold flash mob style runway shows in unexpected locations such as rooftops and swimming pools.  PU2 prides itself in organizing events that shock its audience and get people talking.

PU2 picks the locations for its events by identifying certain key social media users and targeting an experience around this individual, hoping that the individual will then be the origin for a cascade of social media posts that gets the word out about the event.

The CEO of PU2, Mr. Knowslittle, lets his staff handle the social media elements of the business.  This past year he saw the movies Chef and Catfish and now thinks social media might be a risky area for him but he knows his team relies on social media to conduct their business.  He has asked you to advise him on any practical or legal risks his business might face due to social media and to put them in perspective with the potential benefits his company could receive.  Since he has never used any social media platforms but really enjoyed the movies Chef and Catfish, he would like you to use examples from these movies to help illustrate your points.

Compose an email to your CEO advising him about his company’s social media risks and potential rewards.

QUESTION TWO

PU2’s latest marketing stunt involved building a giant pyramid in Times Square.  An actor wearing sun-god robes stood on the top of the pyramid while a hundred other actors stood at the base of the pyramid and threw little pickles at the sun-god.  Your CEO is unclear what this event was supposed to promote but it did receive a lot of attention on social media.

During the event, the well-known action movie star Arnold Schwarzeblecher (“Arnie” for short), was filming Total Recall 2: Totaller Recall nearby.  Seeing all the commotion, he came to Times Square and proceeded to take part in the event.  He laughed, he cried, he said it was better than Cats as he stood and threw little pickles.  Several bystanders saw Arnie participating in the event and they all took pictures and videos and posted their content to social media.

When Arnie returned to his trailer he had several urgent messages from his public relations team.  They saw all the posted content and, even worse, so did a number of entertainment websites who are now running articles that Arnie is working with PU2 to promote…whatever the pickle throwing event was supposed to promote.

Arnie’s team is demanding you pull down all content using Arnie’s image.  Your CEO, Mr. Knowslittle, has received some of these demands as well.  Not only does he want to keep the content up but he’d also like to start posting some of these pictures and videos directly from all PU2 social media accounts (“Whatever those are,” he says, because he still doesn’t really get it).

Compose an email to your CEO addressing the demands from Arnie’s public relations team as well as Mr. Knowslittle’s desire to post this content from PU2 accounts.

QUESTION THREE

Your CEO, Mr. Knowslittle, has sent the head of Human Resources to speak to you about an employee matter.  The Marketing Department had extended an offer to a new Event Manager, Helen Clueless, a week ago.  Helen accepted the offer almost immediately and the team had been thrilled to bring in their newest team mate.

Some of Helen’s strengths which carried her through the interview process were her extensive social media skills and ability to build online communities.  She had built her personal brand on Twitter and had an account with over 20,000 followers at the time of her interviews.  The hiring manager, unsure of how to handle Helen’s Twitter account during the interview, was especially careful not to read the content of Helen’s tweets and ensured that everyone involved in the hiring process did the same.

After the Times Square pickle throwing, Helen tweeted out several messages that are highly critical of PU2.  Some examples include:

  • I cannot believe I’m starting a job next week with this company. #picklethrowing
  • Sure, the job pays well, but am I going to work on stupid events like this for the rest of my life? #picklethrowing #worstjobever
  • Please, Twitterverse, find me a job before I start working for these morons. #picklethrowing #willworkfortweets
  • Just wish my last gig hadn’t fired me for that drug bust. #justpot #legalizeit

The last tweet caught the attention of HR in particular and they then reviewed the content of her Twitter account.  They discovered dozens of tweets referencing drug use and other behaviors that are clear violations of your Code of Conduct.

To make matters worse, now other people are starting to reply to Helen’s tweets and including PU2, asking your company if they really hired someone who is just going to insult her employer before she even starts her job.  HR would like to know what options they have regarding Helen.

Compose an email to your head of HR and CEO advising them on what they can do about Helen and if there is anything they should change in their hiring practices to mitigate this risk in the future.

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My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.

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Social Media Law Final (You Know You’re Curious)

Because triumph.

While I enjoy many aspects of being a social media lawyer one of my absolute favorites is teaching a class I developed at the University of Texas School of Law.  This spring I taught the class for a second time to an even larger class and had many entertaining classes and conversations throughout the year.  We even had to deal with actual ice cancellations and fake ice cancellations and held one class virtually over Adobe Connect.  All in all, a fun semester.

Since my class covers a variety of legal subjects impacted by social media, the final also covers a number of different topics.  And just like last year when I posted the first law school exam I gave, below is an embed of this year’s final.  Now you can play along and imagine what you would respond if you had to take this final.  I omitted the first page which was just directions–just know it was open book and students had three hours to take the exam.  Each question was weighed equally.

Oh, and there’s a social media easter egg hidden in the final.  Let me know if you find it.

Update: Jason Ross found the easter egg first, so congrats to him!  Yes, I rickrolled my students, they just didn’t realize it.  Read the first letter of each line of the final.

 

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My Keynote: Seven Stories of Social Media Legal Risk

This.

You always remember your first keynote.  So I’ve been told.  And so far, that’s true.  I’ve spoken at conferences, chaired conferences, led panels and participated on them.  I’ve taught one-off classes and an ongoing Law and Social Media class at the University of Texas School of Law.  But this past January was a big milestone for me as I was invited to deliver the keynote address at the Charleston Law Review’s annual symposium.  The year before, their keynote speaker was retired Supreme Court Justice Sandra Day O’Connor.  I figured she was an acceptable opening act for me.

It actually took me a while to decide what to speak about–there are so many great subjects within social media and the law (hence this blog).  So I cheated a bit and instead of picking one topic I picked seven.  Actually a bit more than seven but I organized these subjects around seven stories of social media legal risk.

The symposium was fantastic.  A great venue in the Charleston Music Hall (I’ve never spoken in a room with a balcony except my own living room and that’s mostly to tell my boys to come downstairs).  And a great schedule with four other panels dealing with social media and the law, but not marketing–typically the majority of social media law talk is about marketing.  It was refreshing to see a symposium with panels on employment issues, your digital afterlife (what happens to your accounts after you die), privacy, and legal ethics.  Fantastic speakers, materials, and very well organized.  Total package.

Charleston Law Review ended up posting the video of my keynote.  I’ve embedded the YouTube video of my keynote below in case you have 55 minutes or so to kill and want to fill it with some fun social media stories. And below that is an embed of my slides because I use slides a lot but you can’t see them in the video. So you’ll just have to click along yourself to see all the fun.

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3 Bad Social Media Policy Criticisms

“And sit up straight when you’re composing a social media policy!”

While social media policies can certainly go too far so too can criticism of such policies.  I found that to be true with a recent Above The Law blog post Biglaw Firm Holds Associates To Strict Social Media Policy.  In a full hat tip, the post was sent to me by Scott Malouf (@ScottMalouf) who also recently interviewed me for an article about social media legal issues.   The interview went so long (because us lawyers don’t know how to shut up–case in point, look at the length of this post!) that it was divided into four parts so here’s a link to part 1 if you’re interested.

The blog post is highly critical of the social media policy put out by Milbank, Tweed, Hadley & McCoy, a large firm with hundreds of attorneys and offices around the world.   Three criticisms of the firm’s social media policy are presented in the blog post, all of which I think are going a bit too far.  I’m not sure if the tenuous arguments are just the blogger trying to be sensational or an honest critique.  In case of the latter I thought it was right to call out the attack for being short sighted.  And in doing so it may provide some guidance to others still working on their own social media policies.

Here is the first policy section criticized:

The Firm is aware that its lawyers and administrative employees may wish to participate in or contribute content to social networking websites, weblogs, internet diaries, tweets, wikis or other publicly accessible Internet forums (“Social Media Sites”) for both business and personal use. Unfortunately, Social Media Sites may create opportunities for personal and professional embarrassment, breaches of confidentiality, real or perceived violations of privacy and identity theft, and the risk of publishing views or information that may be inconsistent with the interests of one or more Firm clients, among other hazards.

The blogger does point out that much of this is true and it’s good to signal these concerns to the attorneys.  But then the post goes on to read

That said, the language “may be inconsistent with the interests of one or more Firm clients” is a little troubling. The policy correctly notes that even “the personal activities of lawyers and administrative employees on Social Media Sites may be misperceived as Firm-authorized,” but how far can Milbank go in labeling private statements as candidates for misperception? Can Milbank hold it against an idealistic lawyer bad-mouthing offshore drilling and promoting new legislation/regulation when the firm represents large energy concerns? One would hope not, but the policy reads like that’s a real possibility.

The notion that an individual might bring about some negative consequences for their employer shouldn’t be a surprise to a large blog like ATL.  There are countless examples over the past several years.  Although this blog post came out on December 9 so it can’t be faulted for not knowing the most recent example of now former public relations executive Justine Sacco and her racist AIDS tweet.  Social media content can go viral in minutes and even someone with less than 500 followers (as Ms Sacco had) can end up on the front pages of news sites in a few hours.

Milbank’s point, which the blog ignores, is that it isn’t the firm that will try and connect an individual post to a corporate position.  It’s the blogosphere and social media community that will do so.  When Ms Sacco made her tweet nobody thought that her employer believed the same thing, but there was an immediate request for a statement and the obvious need to distance themselves from such a tweet.  This is a heightened concern for an employee of a media company since their conduct on social media is plausibly connected to their work.  But the same is also true for an attorney who handles sensitive information and is supposed to be a trusted advisor.  Like it or not, a lawyer who behaves badly will call into question the firm that trusts the lawyer.  Here’s just one example of an attorney behaving badly that ended up getting his firm fired.   There are many more.

We have seen a constant blurring of the line between personal and professional life.  Despite the wealth of jokes about lawyers, attorneys are held to a higher standard.  Lawyers know this and law firms know it too.  Calling it out specifically to lawyers and telling them that their actions may create conflict for a client or firm isn’t wrong.

The second section of the policy criticized by the blog reads

Although the Firm strongly discourages any lawyer or administrative employee from disclosing his or her association with the Firm when participating in discussions or asserting opinions on a Social Media Site, if a lawyer or administrative employee discloses his or her association with the Firm in such circumstances, a disclaimer along the following lines must be included: “This material/opinion is my own and does not purport to represent the positions, strategies or opinions of my employer.”

That’s not a horrible recommendation.  The firm is encouraging attorneys to just leave the firm out of any discussions but if it comes up to include a standard disclaimer.  Although it’d be nicer to have the disclaimer be left up to the attorney and perhaps made a bit more organic, it’s not hard to see why such a large firm would just make standard text.  The blog post goes out of its way to critique this part of the policy:

Most Facebook profiles identify the person’s current employer. In that case, wouldn’t a person be “disclosing his or her association with the Firm when participating in discussions or asserting opinions” in every conversation they have on Facebook? I’m guessing this disclaimer isn’t added to every post where a Milbank associate posts about the One Direction concert they went to last night. Even though that’s horrifically embarrassing for the firm and everyone else connected to the lawyer.

First, pointing out that Facebook profiles mention the person’s employer ignores the part of the policy where the firm suggests attorneys not do that.  But even if a profile did include that information, the firm  isn’t necessarily part of the conversation.    This is why I always encourage people to disclose their employer or employment relationship if they are talking about their work.  I always hear the standard “But it’s in my profile!” or “All my friends know for whom I work!” (okay, most of them don’t say whom or even talk like that).  But the point isn’t about your friends or what they know, it’s how a post can be shared or seen by others that don’t know you or your employer.  That’s the time you want the disclosure to be built-in.

Here, the firm wants the disclosure to be built-in if you’re going to talk about a matter relating to an attorney’s job.  Which could only be talking about a client or a legal matter and you can see why they would want the disclaimer.  Trying to stretch this to a post about One Direction is overreaching.  Or, in the words of One Direction: That’s what makes it non-sensical.  (And let’s all forget I tried to make a joke about 1D lyrics, mmkay?)

The final part of the policy criticized by the blog reads:

The Firm reserves the right to monitor the activities of lawyers and administrative employees on Social Media Sites and may at any time request or require the removal of any posting or content on a Social Media Site. If conduct is in violation of Firm policies and/or is seen as compromising the interests of the Firm, the Firm may take appropriate disciplinary action.

While I think this is a bit wordy and potentially unnecessary (reserving the right to monitor?) it captures what we can imagine most social media savvy companies do already.  Perhaps they only wait for a crisis to erupt or they have a third party monitor conversations or they engage in more active monitoring on their network.  But not being aware of what your employees are saying in light of heightened risks over what your employees might say isn’t just risky but potentially really dumb.  And big law firms, successful ones anyway, aren’t dumb.  But here’s what the blogger had to say about this section:

That’s probably just meant to cover Milbank’s bases, and not a declaration that Milbank has NSA screeners checking out every Pinterest post that some Tax associate just put up. Still, welcome to the Panopticon of One Chase Manhattan Plaza! Your employer may be checking up on your private life right now and preparing “disciplinary action” for posts the firm — and the firm alone — decides cast the firm in a negative light. Or maybe they aren’t checking up. You’ll never know!

This is a fairly weak criticism because at this point you should expect a social media aware company to be monitoring social media.  That’s part of the point of being on social media.  A small part of that may be monitoring your employee’s posts, but more likely than not those posts simply fall into the bucket of monitoring the conversations around your brand.  But nobody should be surprised that a company might see an employee’s post–whether they looked for it intentionally or not is irrelevant.  That is a far cry from “checking up on your private life” and goes too far in criticizing the policy.

I’m not saying the Milbank social media policy is perfect–no policy is perfect.  But it’s a pretty good one for a law firm.  And the areas in which Above The Law criticizes it are unfair–these are real concerns for any company, let alone a law firm which must hold itself to a higher standard.  That said, there are areas where the policy could be less restrictive or wordy (or just deleted to make it shorter and more memorable), especially when it comes to mentioning other policies or rules (and if they think they need to remind their attorneys that the same rules apply on social media then maybe they need to do more than put out a memo).  I’m all for improving policies but I think taking potshots at a good policy goes too far.

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