RSS FeedAnnouncing the Launch of ObiterTweet by Steven Pulver
It’s a law student’s dream – or maybe a nightmare. Law firm recruiters scouring social media networks to find an appropriate candidate for their firm.
The current recruitment process does little to reveal the personality, collegiality, drive and habits of applicants. It does nothing to demonstrate their business connections, an important quality for “finders,” or political involvement, for firms that engage in lobbying and government relations.
The majority of law students do spend hours on social media platforms, usually behind walled gardens that they think are impermeable, so why wouldn’t law firms go where they are? We’ve already seen Edward Prutschi discuss how his firm used Twitter during articling recruitment, which helped them find Joel Welch.
Earlier today Michael Fitzgibbons of Borden, Ladner, Gervais LLP in Toronto pointed to this Globe article, showing an increasing trend by employers to use social media for recruitment. But is this just commentary about management-side employment practices, or could law firms be using it too? What about BLG, the largest law firm in Canada? (Hi Halla!)
The firm does have a Facebook group for employees, and another one for law students and lawyers to connect.
But the telling sign is a tweet from last Friday by the firm,
The Toronto office of BLG is looking for a Financial Services Associate with 3 to 4 years experience http://bit.ly/2RJO9I #law #job #career
It appears as if Bay St. firms are not only using Twitter for recruiting, but they’re using shortened urls and hash tags properly too! Kudos.
For our part, law students are trying to meet the law firms half way.
Enter the brainchild of Steven Pulver – a 1L at UWO – the first-ever Chief Technology Officer for our Student Legal Society. Pulver is working on ObiterTweet, an upcoming platform to help law students and law firms interact.
Or as he says,
Twitter, Meet Law School.
Law firms, meet Twitter at Law School too. Send him an email if you’re interested in participating.
Don’t Smile when Depressed and Dancing with Strippers
Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.
The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays. Her Manulife representative told her that,
I’m available to work, because of Facebook.
Ironically, most of these events were recommended by her physician as part of her treatment.
Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment. The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.
Thomas Lavin, Blanchard’s counsel, expressed similar reservations,
I don’t think for judging a mental state that Facebook is a very good tool. It’s not as if somebody had a broken back and there was a picture of them carrying …a load of bricks. My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.
We don’t know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder. Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.
And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile. Facebook photos go through a screening process, essentially attempting to put the “best face forward.” What each person considers best, whether it’s attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person. In Blanchard’s case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.
Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:
- Hamilton Rating Scale for Depression (HRSD or HAM-D)
- Montgomery-Åsberg Depression Rating Scale (MADRS)
- Beck Depression Inventory (BDI or BDI-II)
- Zung Self-Rating Depression Scale
- And more.
As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity. Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.
Facebook status update corroborates alibi
Popular social networking sites such as Facebook have been the focus of legal attention for issues of privacy, and for their increasing use as evidence against parties in legal matters. Many criminal defendants and parties to divorce proceedings have been considerate enough to record their misdeeds for posterity, and savvy prosecutors and divorce attorneys have been keen enough to try to use them.
One recent incident stands in stark contrast: using Facebook helped one New York teen to clear his name by corroborating a much needed alibi. Rodney Bradford, 19, was arrested as a suspect in a robbery case. The district attorney found his alibi – his parents claimed he was at home with them – dubious, up until Rodney’s attorney pointed out this Facebook status update made near the time of the robbery:
“Where’s my pancakes? Oct. 17, at 11:49 a.m.”
Charges were dropped after Facebook confirmed the status update was made from a computer located at Rodney’s father’s apartment.
Reported in NY Times Local for Fort Green
Reputation Management Law is the Next Big Thing
Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,
Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.
Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.
It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:
- Ask for the review to be taken down
- The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
- Sue
- Encourage patients to post positive reviews
- Use the criticism as an opportunity to improve practice
It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.
RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com. It seems quite a few of my law professors are up there. A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.
Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous. Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.
It can and has happened. Solomon points to the case of Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc. On April 28, 2008, the Edmunton Sun covered the story,
An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.
The posts in question stated:
“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007
“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007
Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month. Not surprisingly, they do not comply with the requests. The site does serve an important public function for consumers of healthcare. But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.
In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.
What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.
The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,
62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart, Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available. Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution. However, similar defamation claims in Alberta were made against co-defendant Linda Scott. The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.
Even when a claim is substantiated, it is possible for either party to turn malicious. The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly. All types of litigation will invariably cross over into this specialized area of law.
Some of these rating sites allow the professors to respond to their students, even with video. Or, as they put it,
Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…
I don’t see other professions going the same way, given the nature of client solicitation. So where do people turn for help?
Wilson concludes,
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…
Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.
Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like CanLaw. They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.
And that’s assuming that you waited until the end of the article to do so.
Facebook and privacy
Ottawa takes on social media giant for violating Canada’s law
An absolute beginner’s guide to free online marketing for lawyers
Don’t you cringe when you hear marketing and lawyers in the same sentence? Didn’t you go to law school instead of an MBA program so you never had to deal with marketing or sales of some sort? That may be true, but I am afraid you’re stuck with marketing as long as you have or need clients. The good news is the Internet and social media can take both the stigma and the pain out of the process. It works, and it is often absolutely free. You just need to know some basics.
Let’s assume you’re not Edward Greenspan or Abraham Lincoln. You’re interested in reaching out to three groups: clients, potential clients and colleagues. You know how to use the Internets, and you don’t mind some publicity. Before you go any further, remember: choose strong passwords and use some password management software. That should keep you reasonably safe from identity theft. Finally, have an open mind and grow a thick skin. Some people on the Internet have a foul mouth. Beyond these simple warnings lie huge online marketing opportunities.
The power of free online marketing is in social media. Here is how it works. Social media is a way to publish messages for a circle of followers. If some of these followers have their own followers, you all form a network. When your message reaches your circle, one or more of its members can pass it on. It’s exactly how rumours spread in small towns. But social networks are bigger and faster thanks to instant and massive online communications. Some celebrities have online circles consisting of hundreds of thousands of people. Imagine the PR possibilities. And the media is social because online audiences themselves do a lot of heavy lifting in spreading the message.
That’s exactly how sites like Twitter work. You get your own page. You can post short messages on it. If you get someone to care about it, they can subscribe to your updates. You can subscribe to other people’s updates. Each subscriber can scroll through a page consisting of updates posted by his or her circle. If a message is interesting enough, it can propagate through the network reaching awfully many people. All for free. You just need to get the community to care. Facebook and LinkedIn are similar, but they used to focus on building online people networks. Now they imitate Twitter by encouraging members to post updates. Social media works because millions of people are on these sites typing away or reading every minute of every day—millions connected into a network.
Every message on the Internet that matters works like this today. Forums, blogs, good old websites, you name it. Unless the message gets into social media, it’s probably lost. I am not talking about paid advertising of course. That’s an exception, but you probably already know that money can buy you eyeballs. If you don’t want to spend a lot of money, social media can help you.
Take blogs, for example. A blog (click for an example) is just a webpage where you post articles on a regular basis. It usually looks like a sequence of postings sorted in chronological order. Often authors allow readers to post comments or questions under each posting. Twitter postings are similar to blog posts, but there are two important differences. First, your posts on Twitter must be 140 characters or less. There is usually no length limits on blogs. Second, Twitter organizes readers into a cohesive community making it easy to pass on posts (tweets) through the network. The length limit also simplifies spreading a message through the community. Shorter messages on average probably have higher chances of being read than long blog posts. Remember, the key to social media is the speed and the reach of your message.
Forums are one of the oldest methods of online discussion and content distribution. A forum (click for an example) is a webpage with a list of topics. Each topic is a link to another webpage with a list of posts on this topic. Each post is also a link leading to a page that contains responses to the post. That’s how people talked online fifteen years ago. That’s how many of us still talk today. Unless the forum is members-only, anyone can choose to check the postings. But you have to scroll through all of them to see if anything interests you. Then you can choose to respond. If you are interested in several forums, you have to check all of them regularly. There is no circle trusted to post only what interests you. You have to sift through the content yourself. But some forums are so popular that this is not an issue.
(to be continued)
Social Media in Canadian Politics, and Defamation and Copyright
Omar Ha-Redeye gave a talk on the use of social media in politics, focusing on the Canadian scene, at the Miles S. Nadal Management Centre in the Ernst & Young Tower of the Toronto Dominion Centre.
Issues of copyright, including the use of YouTube, are discussed, as well as social media alternatives to defamation actions.
Ontario Ombudsman
The office of Ontario Ombudsman is on Twitter and Facebook. The Ombudsman is a pretty unique independent oversight officer accountable directly to the provincial legislature. He investigates people’s complaints under the authority granted by the Ombudsman Act.
Add or follow the Ombudsman. It’s cool to see government trying to get on the social media bandwagon.
Online Privacy: The Noose Tightens
The scholars, captains of industry and champions of justice who compose Law is Cool’s readership will have long since scoured their online social networks for photos or other items tending to compromise their integrity — reports of “the dark side of social networking” are thick on the ground. But a recent court decision may renew paranoia that privacy is an artefact of the twentieth century, doomed to join its contemporaries (pagers, Chris Tucker, student activism, literacy, the Ark of the Covenant) in oblivion.
Just weeks after finding that Canadians have no expectation of privacy in their online identities, Ontario’s Superior Court of Justice has ruled that posts on Facebook and other online social networks may be discoverable against their makers, according to the Star’s Tracey Tyler.
Plaintiff John Leduc claims that injuries sustained in a car accident in 2004 have lessened his enjoyment of life. The court found that Leduc may be cross-examined on the contents of his Facebook account where such contents are relevant to his claim — despite the fact that security settings on his account restricted access to his profile to only his close friends.
If Leduc’s Facebook account contained evidence of him
- exerting himself,
- stopping to smell roses,
- “seizing the day” in any fashion, or
- otherwise engaged in merriment,
such evidence might undermine his claim. Pictures of him sitting on the roof of his car watching the sun set over a northern lake, or snowboarding through thick powder with the caption “Go for it!” beneath him, would be especially damning.
The decision overturns a Superior Court case management master’s ruling that forcing Leduc to produce the contents of his Facebook account amounted to a “fishing expedition”, since there was nothing — except Leduc’s opposition to disclosure — to suggest that any compromising photos in fact existed. Leduc’s profile consisted only of his name and picture.
A search of Facebook for accounts registered to “John Leduc” yielded 129 results — many of whom appeared to be enjoying themselves.
Facebook Privacy Settings May Keep Out Nosy Profile “Creepers” but not Modern Litigants
It was only a matter of time before Canadian jurisprudence began to develop in response to privacy issues and the admissibility of documents associated with enormously popular social networking sites such as Facebook and MSN’s MySpace. As a result of a number of District and Superior Court decisions it is now uncontroversial that these profile pages may contain relevant documents that can be admitted as evidence; typically these cases involve a plaintiff claiming a deprivation of life enjoyment or working capability and germane photographs demonstrating a party’s ability to engage in sports and other recreational activities.
When it comes to court orders for the production of documents attached to privately listed Facebook profiles and pages the law is not quite settled. Recently, however, the Superior Court of Ontario allowed an appeal overturning a previous decision not to order a plaintiff to adduce documents that are private. This signals the willingness of courts to place full discovery of documents and defendants’ need to assess the case to be met over online privacy rights.
In the 2009 case of Leduc v. Roman, the Plaintiff was injured in a car accident due to the defendant’s negligence. At issue was the Plaintiff’s inability to engage in outdoor sporting activities that he enjoyed before the accident. To controvert the psychological evidence the Defendant asked for all documents on privately listed Facebook pages of the Plaintiff. Master Dash refused to order the production of the documents.
Weighing heavily in the master’s reasoning was the fact that the Plaintiff’s public page had only one casual head shot not indicative of what may be on the other pages. Another aspect was that the Defendant had an opportunity to ask at discovery whether the Plaintiff had photos – either a hard album or electronically—that are demonstrative of his lifestyle but there was no evidence such questions were asked.
On review of the master’s decision, the court found that the master erred by exercising his own discretion and not applying the principle in Murphy v. Preger that a court can infer, from the nature of the Facebook service, the likely existence of relevant documents on a limited-access Facebook profile.
On the point of discovery, it was noted that although the issue of Facebook documents came to life only after the discovery period ended, once the Plaintiff submitted supplementary affidavit evidence the Defendant had the right to cross-examine to discern what kind of evidence existed. The rationale influencing the court’s decisions was that “to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website… risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”
What this means?
Courts are not going to allow litigants to hide behind privately listed pages or profiles. So if you have any self-incriminating photos or embarrassing pictures from that drunken stupor up in your buddy’s cottage during the May 24 long weekend, don’t be surprised if they end up in a courtroom.
This goes for your friends’ profiles, too. As it stands now, it is possible that if a court had reason to believe there are relevant documents on a friend’s page by, for example, a paired picture including yourself on a home profile mugshot, then production of documents on that account may very well be ordered; again, notwithstanding the exclusivity of the pages.
Perhaps the courts will be the institution to quell this generation’s torrid love-affair with the pre-event, main attraction and post-event photo shoot.
Sysomos Has Your Info, and Has Some Interesting Results
Yesterday, Nicole Baute of the Toronto Star covered a new social networking analysis company, Sysomos. The Canadian company gathers data from Twitter, Facebook, and 30 million blogs. Yes, 30 million.
It’s a new start-up by a UofT prof and one of his grad students, and they received financial support from the province to get things going.
They claim to go beyond brand monitoring by identifying what people are saying, who these people are, and what their tone is.
One recent practical application is mentions of Stephen Harper when parliament was prorogued. They also say it could be used for crisis communications, such as the recent Maple Leaf scare.
Privacy concerns are also raised by one marketing professor,
I’m no lawyer, but my general sense here is that there’ll be some noise in the system (from privacy advocates) about this. I think it’s user beware, and if you choose to blog, you’re putting stuff out into the public sphere.
I’m no lawyer either, but I would agree that if the information they are collecting is made publicly available by the user and only analyzed in the aggregate, there is little room to complain.
As for ads that watch you through a hidden video camera and use facial-recognition software, that’s a totally different issue.
Cross-posted from Slaw
Law Students Can Network with Lawyrs
Devin Johnston, a second-year law student at the University of Manitoba, predicts the death of Facebook within three years.
A major reason is alternative social media platforms that will compete with it more effectively.
I’ve already mentioned Jurafide as one alternative for lawyers seeking American clients, and Jordan Furlong has mentioned LawLink just over a year ago. At that time, LawLink was restricted to American attorneys. It has since opened up to include lawyers from the UK, Canada, and Australia.
However, they still have a statement under the “threat of perjury” that the registrant is a practicing attorney in those countries. It was effective enough to deter this law student from registration.
I’m trying out Lawyrs instead, a platform specifically intended for lawyers and law students, with no geographic constraints, and more importantly, no threats of legal prosecution.
The ability to dialogue and network with legal professionals from 128 countries (although mostly American and British) is fascinating. They obviously have groups like other social networks, often comprised of alumni or interests, and a legal news page. But without RSS for the news, I’m unlikely to check in regularly on the site for updates.
There’s also a page for law firms, and if the view stats are any indication they appear to be used with some frequency. Firms can provide news stories as well, and this might be an inexpensive alternative for law firms to send their releases.
Finally, Lawyrs has a publications page, which might be useful if you’re looking for a legal scholar in a specific area. Publications give a lawyer credibility. But it’s also a useful outlet for publicizing your publications, instead of remaining unread by anyone other than the editors of the law journal. I’m trying out different platforms to share some of my own recent publications in hopes of getting the material to people who might be interested in it.
A drawback of the site is the inabilty to import contacts like other social network platforms. Nobody with a sizable addressbook would attempt to manually invite all the lawyers in their (virtual) rolodex. I have no idea if anyone else I know is using the site, or really how useful it’s going to be in the long-term. If you do sign up though, please do add me as a contact so I can see what you’re up to.
One thing is for sure, we will continue to see more and more law-focused social networks. Eventually one, or several, will emerge as dominant, depending on the purpose they are being used. It’s also possible that none of them will thrive, and the lawyers will instead flock to whatever networks everyone else is using. We’re surrounded by lawyers every day, all day, and keeping in touch with all the other people in our lives is important.
It’s also worth noting that a social network exclusively for lawyers doesn’t allow lawyers to interact with past, present or future clients. More importantly, those potential clients can’t find you, no matter how many news stories or publications you upload.
Cross-posted from Slaw.
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