Division B: Social Media – Advice and Information for the Legal Profession
Social media sites such as Facebook, Twitter, and LinkedIn are becoming an integral part of the way people communicate. These sites are increasingly used by members of the legal profession both in their personal and business capacities.
Participating in social media has many benefits as an interactive communications tool, but also presents certain risks and challenges. However, many of these risks are not unique to social media, and legal professionals should also consider the general risks associated with all forms of engagement and communication, and how these can be minimised or avoided.
This advice and information note touches on issues relating to use of social media by the legal profession for business purposes, as well as issues which firms may encounter as employers, and some of the ways in which social media is influencing and changing the content and practice of law.
This information also aims to encourage individual legal professionals to think about how they use social media, and some of the professional and ethical issues that may arise. Social media has a lot to offer, and both firms and individuals have much to gain through engaging; by being aware of potential issues, members of the profession can make the most of social media.
Participating in social media provides the opportunity to engage with a diverse group of bodies and individuals. The ability to share links, text, photographs, and videos allows for a much wider range of information to be distributed and accessed. The instantaneous nature of much social media provides the ability to take part in conversations and follow or react to ongoing events.
How the legal profession is using social media
- Several firms in Scotland now market properties through Twitter. LinkedIn communities and groups are being used for business development - for example, employment lawyers providing information to HR managers to build a following. Some larger firms use Facebook to stay in touch with prospective trainers during the PEAT 1 / Diploma stage of training. One firm has used Facebook as an easy method of obtaining photographs from a client located in a different country.
- Firms are increasingly using Twitter and Facebook as ways to broadcast their news and promote the services they can offer
- The Law Society of Scotland uses Twitter, LinkedIn and Facebook not only to discuss and provide information about legal events and issues, but also to gauge the reaction of the profession and public as events unfold
3. The Platforms
There are an increasingly large number of different social media platforms. This section aims to provide a brief introduction to some of the main sites - LinkedIn, Facebook and Twitter. These are just examples and there are many other forms of social media such as Myspace, blogs, YouTube, and forums or chat rooms, providing a range of opportunities for both individuals and firms.
LinkedIn is a business oriented site aimed at professional networking. With over 135 million members globally, more than 6 million in the UK, the site considers itself to be the world's largest professional network on the internet.1
Users of the site can maintain a list of connections to other professionals they know. This then allows for further networking through the connections of the people you know. Businesses and firms can also create their own profiles.
It is also possible to form and join groups, allowing for networking within specific areas of interest.
The site is also used as a job search tool, allowing individuals to connect with potential employers, and for recruiters to identify potential candidates for a job.
Many individuals carry a LinkedIn page from job to job, making it a form of personal online CV and list of contacts, of course, those contacts may relate directly to work - an issued touched on later. Many organisations will set up company pages and discussion groups, these more clearly relate to the business, but confusion can occur when one individual builds and manages the page or where it relates to a particular type of work, for example, an employment law discussion page, rather than directly to the firm.
Facebook is a site which allows individuals to set up profiles to share information and communicate with other contacts. Businesses can set up pages to interact with people and provide information about their services.
The site has over 800 million active users (those who have accessed the site within the last 30 days). Users can share status updates, photos, links, and personal information which can be accessed by the public unless restricted through the privacy settings.2
Facebook is used as a platform for the development of applications, and is also used by businesses for advertising, directly through targeted advertisements on the site, or by using their pages.
Similar issues arise as noted above for LinkedIn, however the more personal and family focus of Facebook means that for the legal profession many profiles will only be shared with friends, rather than business contacts, reducing some of the concerns that arise.
Twitter is a social networking and microblogging site with over 100 million active users.
Describing itself as a real time information network, users can share messages of up to 140 characters, and follow messages from selected other users. Other content, including pictures and videos, may also be linked to and viewed through the site. These tweets are public by default, but can be restricted by using the privacy settings. There are around 230 million tweets sent every day.3
Twitter can be a work or personal tool, or both, and it can often be hard to determine if it more strongly relates to an individual or their work.
4. Good Practice
Participating in social media can present significant personal and business benefits, and members of the legal profession should seek to engage with social media in a positive way.
Two key pieces of advice can be given:
1) To remember that all professional responsibilities apply regardless of the medium of communication.
2) For law firms and in-house legal teams to have a social media policy in place for partners and staff.4 Individuals considering using social media in any way related to their work should check whether a policy is in place, and, if not, may want to discuss issues in this note in advance with an appropriate manager and document that discussion.
Having and using a policy will assist in setting expectations, and in raising awareness of the risks and how to manage them while making the most of the opportunities available.
Issues to consider in a policy or discussion with managers include:
- guidance on acceptable use of social media at work
- the use of social media on company equipment and whether is it permissible to access social media sites during working hours or whether such sites are blocked at work
- the use of social media in a personal capacity where it links with work, for example, making comments about the company or linking with clients as friends
- a reminder that employees are expected not to behave in a manner which would reflect poorly on the business and its reputation
- issues around data protection if client details are being stored on, for example, LinkedIn
- issues around client confidentiality, reminding solicitors and staff of their absolute responsibilities in this area
- privacy issues (relating to staff and clients)
- copyright and other IP issues relating to content
- consideration of all the facets of social media which may include a database of contacts, events or work diaries, extended content (such as blogs and articles), video, and images (for example, photographs of work social events uploaded)
- guidance on which sites may or may not be deemed appropriate for business use
- guidance as to who is deemed to own the content on business related social media sites, and personal ones where business contacts are being collected
- guidance on the company's social media strategy, including a policy on business profiles and using social media in a business capacity and in recruitment
- links to other relevant policies - for example, cyber bullying is also becoming an issue in the workplace, but may be committed out of hours on social media
- arrangements for dealing with others who post inappropriate comments (for example, a client posting a joke which could be deemed to breach the firm's equality policy)
- arrangements for amending or taking down social media sites if the main password holder is incapacitated or unavailable, including ensuring passwords and user names are available
In both a personal and professional capacity, it is good practice to have given thought to the risks and opportunities posed by social media, and to regularly review content and accounts. By considering the potential for negative situations to arise, it is possible to plan an advance strategy to respond to such situations.
4.1 Business Considerations
Social media can provide a number of opportunities and new avenues for a business to interact with and communicate with a range of organisations and individuals. The effective use of social media requires a degree of consistency, consideration and commitment. This can result in the need for considerable time and resources spent maintaining and monitoring activity and content. Proper consideration of the business purposes and strategy for use of social media can assist in creating a plan to ensure that social media use is effective and efficient. Elements of this include considering how the business would respond to a negative event or comment, who is authorised to open and maintain accounts on behalf of the firm, and ensuring that social media policies and guidance are in place for staff, as discussed above. It is also worth considering arrangements for decommissioning social media content; for example, if a site is set up to test a new platform but ends up underutilised and with out of date content it may be better to take it down.
Linked to the issue of controlling who is authorised to represent the firm through social media is the question of ownership of contacts and content developed by an individual through use of social media for business purposes. This is a particular issue when an individual who has built up a considerable following or contacts changes employers.5 The situation can be complex, removing a complete list of clients from firm database would be likely to raise issues around theft, data protection, employment law and other issues. However, many staff may have significant data build up in, for example, LinkedIn. This may be a personal profile, but contacts may have been added during work time and through contact which would not have been made other than for a work relationship. Not only will the person continue to have easy access to these contacts, but when the person updates their profile with a new employer it is likely an automatic message will be generated to inform their network. There are also issues around content provided to contacts. For example, where a firm mails or emails an HR update to HR managers they retain control when any individual member of staff moves on - the publication continues to go to the same group of (potential) clients. When someone provides content through their LinkedIn profile then followers move with them if they leave, and the list needs rebuilt by a new lawyer within the original firm. These issues should be carefully covered in the firm's social media policies, and be made clear when considering the use of social media by employees for business purposes.
Another practical issue arises on the death of an individual. Accounts on different social media sites can be difficult to close without access to administrative passwords. Any individuals using social media for business purposes, including sole practitioners managing social media accounts for their firm, should ideally ensure that a record of their passwords is available for their firm and/or executors. This will allow an executor to promptly remove accounts referring to the practitioner or the firm. In some cases, delays in removing social media presence could result in professional conduct complaints, or allegations of executors holding themselves out as solicitors.
Where a firm does not have a policy a member of staff or a partner starting to use social media may wish to have a discussion with others to ensure what they are doing is understood and that these issues have been addressed.
There is increasing concern over the potential for employers to check candidates' social media profiles prior to appointment, which may disclose considerable personal information including information which may have equalities implications, such as race, sexual orientation, and religion.
Best practice and the legal implications of the relationship between social media and recruitment are still developing, but employers need to be aware of the potential for such information to be revealed and take steps to ensure that discrimination on the grounds of a protected characteristic is avoided. Remember, it is often possible for experienced social media users to access information on who has been viewing their profile.
Considering non-protected information on a candidate which is in the public domain is not in itself necessarily contrary to employment or equalities law. However, it would be considered good practice to consider the motivation behind carrying out such checks, and how to manage the risks involved in that process. It may be good practice to disclose to candidates that social media presence will be checked as a part of the recruitment process, and how information gained from such checks will be used.6
Social media and employment law, including its use in recruitment, is a rapidly developing area which firms should take care to monitor.
Individuals may also wish to minimise risk in this situation by checking the privacy settings on their social media platforms. For example, tweets can be locked so that people require permission to follow someone, and on Facebook settings can be increased so that even where someone else uploads a photograph the identified individual needs to approve it before their name is 'tagged' in it (which then allows other users to search for that photograph specifically). It may be worth checking settings and contents before entering a job application process.
5. Ethical Considerations and Professionalism
The use of social media is subject to the same ethical and professional standards as all other conduct of a member of the legal profession. Individual solicitors must ensure they abide by the professional practice rules and maintain professional relationships with clients and other members of the profession.7
Social media is often designed to encourage informal communication and sharing of personal views and opinions. The nature of social media also often leads to a blurring of the distinction between public and private. Although building personal relationships and creating a personal dimension to a profile may be a good thing, care is needed to ensure that appropriate standards are met, even in a more informal environment.
Defamation may be committed through comments made online, including through social media. Tone can be much harder to convey through text based communications, and what was meant as a joke may be treated more seriously.8 Anonymity cannot be guaranteed, even when posting under a username, and members of the profession should always assume that comments may be traced back to them, and exercise appropriate discretion.
Issues around confidentiality should be carefully considered. Information made available by you to a small group in private can then be republished to a wider audience. Likewise, individuals should take care when forwarding or 're-tweeting' information to understand in what context that information was sent to them, and whether it was intended for re-publication. Once information is committed to social media a large degree of control is lost.
Professional duties such as acting in the best interest of a client remain key issues when using social media, especially given the potentially large audience who may be able to see the information posted. Other areas where members of the legal profession have specific duties include the duty to maintain respectful and courteous relationships with the courts and with other members of the profession.
The Law Society of Scotland Practice Rules 2011 covers many areas that may be relevant to online activity including:
- Advertising and approaching represented persons (rule B3)
- Confidentiality of client matters (rule B1.6)
- Relations with courts (B1.13)
- Relations between regulated persons (B1.14)
5.1 Friends and Followers
One of the key characteristics of most social media sites is the ability to link to other users, for example by becoming a 'friend' or 'follower'. The links between different users are often publicly visible.
The impact of suggesting a relationship or interest though creating links through social media should be carefully considered. Issues such as conflict of interest may arise, with the possibility that a perception of conflict may be created even if the individual does not consider a conflict to exist. This may happen, for example, if a client notices that his or her solicitor is 'friends' with a solicitor acting for the opposing party to a case or with a judge or tribunal members involved in a case.
Creating a link with clients through accepting them as friends on a social media site should be approached with caution. Members of the legal profession should take care to consider the nature of their activity on that site - including whether it is a business or personal account - and how the client might view the solicitor's online activities and relationships, visible through the site.
Some social media platforms will show content from friends and contacts within your own 'stream' - consideration should be given to how this external content could be perceived by employers and clients, and consideration given to settings to ensure all linked information within your pages is appropriate.
Linking to other members of the legal profession should likewise be treated with common sense, and care should be taken to avoid inappropriate online communication, such as discussing a case or posting any other confidential information, and any potential or perceived conflict of interest. It is worth remembering that even 'direct messaging' (private communication between two individuals) is not necessarily secure. It should also be noted that the internet allows information to be linked together, and that issues have arisen for professionals from that. For example, a passing comment about a 'difficult client' on Twitter might be linked with the time of the tweet, and information from a public court hearing to specifically identify the client in question (as happened recently in an English disciplinary case).
Most social media sites will have a range of customisable privacy settings. Members of the legal profession who use these sites should take care to familiarise themselves with these settings and to ensure that they are adjusted to provide the security and audience desired.
By being aware of who is able to see the information posted on a site, individuals can tailor their content to achieve their goals for that site. For example, a purely private profile may be best restricted with the highest privacy settings, while a business profile might benefit from being publicly discoverable and accessible. Different settings may also be used to create different views for various categories of contacts, for example by having stricter privacy settings for photographs in comparison to notes or comments.
Confidentiality will always be a key issue for all communications, particularly online. Information posted online is extremely difficult to remove, and may be accessible for a considerable period even after deleted. Great care should be taken to avoid posting any confidential or sensitive information through social media.
Many social media sites are designed to encourage people to create a profile containing considerable amounts of personal information. Care should always be taken when sharing personal information that may become publicly available. Consideration should be given to the desirability and potential consequences of making information such as current employer, office and private contact details visible so as to minimise risks such as social engineering and identity theft. Employers should also be aware of the potential for false or unauthorised profiles to be set up, which may purport to be related to the firm through use of profile information or other links.
In addition to different privacy and profile controls, each platform will have its own set of terms and conditions. Whilst these are often lengthy and complicated where social media is being used in a professional setting it is important to ensure that those using social media have read and understood the key terms and conditions of each site being used, in particular around privacy and data ownership. These terms may also contain, for example, certain conditions relating to promotion of services and interactions with other members of a site. They may also provide for rights of ownership or reuse of information and content by the owners of platform.
Personal and physical security should also be considered. Revealing a significant amount of personal information may allow clients to identify a home address and to make contact with you there, and posting information on holiday plans, if a sole principal, could indicate when an office was being left unattended for a week.
7. Social Media and the Law
As social media becomes an increasingly important part of everyday life, its impact on and interaction with the law is becoming clear.
As a means of communication, social media is obviously relevant in a number of different areas, including defamation.
In family law an increasing number of issues are arising in relation to contact with parents or siblings where this has been prohibited by the court but contact is maintained through social media and this has later become known. Depending on how active or passive the contact has been this can create serious issues. Solicitors may need to deal with the consequences of these actions with their clients, and it may be there is increasingly a need to proactively explain to clients the difficulties they may face if they use social media in such as way.
In relation to criminal matters the police now regularly use social media to look for comments about an offence that has been committed or to check a version of events provided by someone who has been questioned. Solicitors may need to be proactive in assessing the implications of social media in a case. There are also issues linked to stalking and higher profile issues around racist, sectarian or threatening statements.
Issues are also now frequently arising in relation to employment law, particularly in situations relating to recruitment, misconduct and dismissal. 9 Solicitors involved in drafting wills are now also increasingly having to consider the digital legacy left by an individual - be that encouraging them to leave passwords and user names with their will to allow sites that some relatives may find upsetting after death to be taken down, through to advising on ownership of things such as collections of family photographs held on social media accounts.
Another example of the internet creating a new context for legal issues is advertising. In particular, the Institute of Advertising has warned that activities such as posting positive comments or reviews, or planting viral marketing advertisements, without making it clear that the individual is acting on behalf of a business, could breach the consumer protection laws.10 Similarly the Advertising Standards Authority (ASA) and Financial Services Authority (FSA) will seek to apply their own standards and regulations to social media if applicable. Firms should consider the implications of individuals using social media for business purposes, and whether activity on personal accounts may amount to advertising or paid for content.
The law is still developing, and much remains to be seen about how the increasing use of social media will impact different areas. In the meantime, the legal profession should be aware of the potential for social media to affect a situation. For example, could a client's behaviour through social media lead to a breach of a court order restricting communication or contact? Could a client's online activity be used as evidence through statements made and locations indicated on social media sites?
Social media is also affecting law in other ways, for example in elements of bail conditions, and with the question of blogging live from courts becoming increasingly relevant.
In short, in every aspect of law and practice solicitors should increasingly be asking what new implications are bought by social media and our increasingly digital lifestyle.
Social Media in the Courts
- Social media played a significant role in the English riots in August 2011. In Scotland, individuals accused of encouraging rioting through Facebook were released on bail with a condition that they did not access the internet.11
- Live blogging from courts, including Twitter, was first allowed in a Scottish court during Tommy Sheridan's sentencing hearing in January 2011.12 'Text based communications' are generally permitted in the Supreme Court, subject to certain exceptions, for example where reporting restrictions are in place.13
- Courts in other jurisdictions, including England, have allowed documents to be served on individuals through Facebook and Twitter where other methods were unsuccessful.14
8. References and further information
- For general information on LinkedIn
- For general information on Facebook
- For general information on Twitter
- Eilidh Wiseman, 'Refining the Message' (2011)
- For example, see http://www.guardian.co.uk/media/pda/2011/jun/22/laura-kuenssberg-twitter-account, or http://thenextweb.com/socialmedia/2012/02/02/phonedog-vs-noah-kravitz-the-twitter-case-continues, or http://www.computerweekly.com/news/2240102972/Former-Hays-employee-forced-to-disclose-LinkedIn-business-contacts
- Information on the relationship between social media and employment issues, including recruitment, can be found through Acas
- All rules and guidance are available online
- As in the case of the Twitter bomb threat in 2010 leading to a conviction by the English courts for sending a menacing electronic communication
- See for a discussion of some recent social media related employment cases
- Singleton, 'Legislative Comment: The Consumer Protection from Unfair Trading Regulation', Computer and Telecommunications Law Review (2009) 77, 79. See guidance from the Internet Advertising Bureau. See the recent Mars case
- BBC, 'Web ban for teens accused of Facebook 'riot' page' (2011)
- The Guardian, 'Tweeting in court spreads to Scotland' (2011)
- View the Supreme Court's Policy on Live Text-based Communications in Court
- Practical Law Company, 'Facebook used to serve court order' (2011)
BBC, 'Court order served over Twitter' (2009)