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Social Media in Law: A 2011 Report

This is part one of a multi-part series about the crossroads of technology and the law.

Messages we write down have been an integral part of the law since the beginning. The value of our digital trail is increasing daily. How we manage our online communications is key to steering clear of the newly formed legal pitfalls of the web.

This series of posts will focus on North America and will draw mostly on existing case law, some anecdotes and a few cases that cannot be discussed in detail due to existing NDAs. For the most part I will reference cases I have been following and how they are slowly drawing the lines in the sand around labour law, privacy and rights.

As the year progresses I will continue to keep you updated on the effects of social media on litigation both civil and criminal. I am currently working with some people who are experiencing the heavy cost of divorce in the age of digital connections by ghost writing their story. I will also explore existing intellectual property cases, discuss defamation and cover labour law in detail. I'll  root out where the lines are and where they are moving by drawing on cases that are happening now.

Today I'll be giving an overview of Defamation, Uttering Threats, Insurance, Divorce and Labour.

Defamation: Anonymity Unveiled

In August of 2009 Google was ordered by a New York court to hand over the identity of anonymous blogger accused of libel* a type of defamation* for comments they made on a website called NYC Skanks, that was hosted on Blogger, which is owned by Google. The judge in the case quoted a ruling by a Virginia court stating that "anonymous online taunters should be held accountable when their derision goes too far." -Full Story

In Vancouver in late 2010 a case regarding a beauty salon where they had to file court orders with both Craigslist and Shaw, an ISP, to find out who their anonymous online defamers were. Both Craigslist (handed over the IP addresses) and Shaw (handed over the customers names associated with those IP addresses) have complied with those court orders. -Anecdotal at this time.

Whether it's magicians in Vancouver, Courtney Love or two organizations trying to help dogs the age of internet defamation and the resulting lawsuits is upon us. Here's a great overview from a lawyer about how defamation works in the law. Remember legal claims of online defamation are on the rise.

Uttering Threats, Digitally

In January of 2010 Paul Chambers, 26, was supposed to fly out of Robin Hood Airport in the UK when his flight was canceled. He went to Twitter to vent his frustration about the closure of the local airport. He was headed to see his internet girlfriend in a tropical location when ash from a volcano in Iceland postponed his trip.
The tweet that cost $6000
His Twitter account was public so anyone could search it and a savvy airport personnel member spotted the tweet threatening to bomb the place and reported it to authorities who were obligated to act on this threat as if it had been phoned in. He was quickly arrested. Paul received some internet celebrity status and a $6000 bill for his indiscretion. He also lost his appeal.

Uttering threats on Facebook is dangerous business as one Montreal man found out in the Fall of 2010. He also showed that when uttering threats online it's best not to be doing other illegal things. In 2008 a Canadian student was charged with uttering threats for posts he made on an internet forum threatening violence against his school.

The lesson? Threats on social networks must be treated as legitimate by authorities. Hide your tweets by making them private or don't tweet threats. Most of the answers to how to avoid the pitfalls above is 'common sense'. The challenge is that many people aren't aware of those things. Worth studying.

Insurance Fraud?

Insurance lawyers are accessing Facebook photos more tenaciously than is imaginable and have been since before 2008. One of the most famous cases in Canada started in November 2009 and involves Nathalie Blanchard who had been out for a year-and-a-half on paid long-term sick leave (disability) following a diagnosis of severe depression. Then her insurance company, Manulife, got their hands on some photos she had posted to Facebook. The photos show her smiling while at a birthday party in a strip club and on a vacation on the beach. 

Manulife took these photos to mean that she was no longer depressed and able to work. Blanchard responded by saying that she was 'happy in the moment, but before and after I have the same problems'. The video below runs through the whole story if you'd like more details and some honest opinion.

A video of the same story with some opinion.

How did they see those photos when her profile settings were totally private? She had made them her profile pictures something that Facebook lets anyone on the internet see. More information: Depressed woman loses benefits -November 2009. Depressed woman fails first try to recoup benefits -December 2009. Related: Manulife posted $1.8 billion in profits for 2010.

According to the Telegraph using social networks could eventually raise your home insurance premiums in the UK by as much as 10%. This is because people who use these networks are seen as 'more at risk' to be broken into due to their posts. For example, if you checkin to FourSquare you most likely aren't at home.

I have searched for more stories about insurance, law and social media but haven't found much more. Although there is even more cases like this out there. Where are they? Please Tweet @KempEdmonds or leave the links in the comments, thanks!

Divorce in the Social Age

The American Academy of Matrimonial Lawyers responded in a recent survey that 81% of them have seen an increase in the number of cases where social networks are referenced in the last five years. This statistic has been widely misreported as 4 in 5 divorce lawyers say that their cases involve social networks by many major networks including MSNBC. I found this out after using the stat myself and then wondering if it was totally accurate. This misuse of statistics is a major pet peeve of mine, but that's for another time or another blog.

Facebook is a divorce lawyer's new best friend
Facebook doesn't cause divorce- spouses do
Divorce attorneys catching cheaters
Wife betrayed on Facebook: "Terrible beyond belief."
Facebook and divorce airing the dirty laundry

Most of the existing stories about the use of Facebook in divorce is around catching cheaters. This is a strong investigative use for lawyers in a bitter divorce battle. Divorce and separation online is a touchy and challenging new dynamic in our social structure. I can't begin to imagine factoring in children. When I dig more into divorce I am going to try and talk about it from a few different angles.

While I am covering divorce later on in this series it will be about the human story of creating intertwined lives and social networks and then going through a divorce. What do you do? Unfriend everyone? Don't post anything about your feelings during the divorce? There are no easy answers to this new challenge that faces those who are divorced in the age of Facebook.

Part two will be coming soon!

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