Social Media Trends Lawyers Need to Know in 2016 Pt. 3

Part 1: Marketing Your Law Firm with Social Media
Part 2: Social Media in Litigation
Part 3: Advising Your Clients About Social Media (You’re Here)

As the new year approaches, it’s a useful time to look at what we can all look forward to in the new year. I mean, it’s pretty arbitrary in general… except when you’re talking about accounting or CLE requirements. But we do it anyway, because it’s interesting.

In reality, the world of social media moves so quickly now that I should probably update you on trends every two or three weeks. But ain’t nobody got time for that! So here is part 3 of my Social Media Trends Lawyers Need to Know in 2016. In this part, the social media trends that will change the way you advise your clients in 2016:

6 Social Media Trends to Know when Advising Your Clients in 2016:

1) More States Adopting Social Media-Specific Ethics Requirements

Just as with Part 2, we’ll start with your ethical obligations. More and more states are addressing a lawyer’s duty to his or her client concerning social media. One of the most prominent topics being addressed is what a lawyer can, cannot, and must advise their client about.

If you’re in one of the states that has addressed social media, the rules are not entirely consistent as to what you’re permitted to do. One thing, however, is universal: you have a duty to advise your client about any use of social media that’s relevant to the matter.

Concerning one crucial topic – the deletion of potentially relevant social media posts – the states have not been consistent (with at least one, Florida, being horribly wrong and providing terrible advice). For the most part, states have concluded that you may not advise a client to delete a social media post that may be relevant to pending litigation.

Other questions, including privacy settings, and a lawyer’s duty concerning any deleted social media posts, also vary.

How to incorporate these social media trends into your client advice:

Add social media to your initial consultation.

By now, you know that the information shared in social media can impact your new clients’ case, pretty much no matter what type of case it is. Given that so many people share so much of their lives on social media, you should expect that your new clients have done the same.

So when is the best time to advise them about their conduct? That’s right, immediately!

Look, the idea of advising your client about their social media activities, from learning about what they’ve already posted, to suggesting an adjustment of privacy settings, and to providing a code of conduct going forward, is your job. Most lawyers will wait until the issue comes up, oftentimes after the damage has been done.

Don’t be that guy.

2) eCommerce is coming to Social Media… in a BIG way!

Do you have any clients who sell products or services online? If so, you’re likely to start seeing their goods on social media.

But wait, you say – they’ve advertised on social media for years now. Not like this, they haven’t:

Facebook and Twitter are expected, over the next year, to join Pinterest in “social selling.” (a.k.a. sales directly from a social media platform.) Some experts estimate that retailers are likely to triple their social media marketing returns on a single ad due to embedded eCommerce options.

It’s also expected that, in the very near future, services will be widely available for purchase on social media. For example, you could hire a plumber (or a lawyer) directly from a post shared by your co-worker or neighbor.

How to incorporate these social media trends into your client advice:

Always re-calibrate security and privacy advice when discussing social media eCommerce.

First adopters are fantastic clients. They’re aggressive, informed, energetic… and frequently in trouble. They test boundaries – or make us realize that new boundaries are necessary – and can end up on the wrong side of new types of law. Social media is no different. In fact, it may be worse, particularly as far as privacy is concerned.

Make sure any of your clients involved in social media eCommerce have instituted policies and infrastructure appropriate to the social media networks they’re on. This probably even means adjusting those policies from one network to the next – your concerns about minors purchasing your product are considerably less on LinkedIn than on SnapChat.

The policies used on a website or through email are no longer going to be appropriate. Worse, we live in an age where yes, everyone has been hacked. Social media is the wild west for eCommerce, so make sure your clients are prepared. Otherwise, they may end up unable to pay your fees after closing for good.

3) More companies are adopting Enterprise Social Media and Messaging Systems

Slack, Facebook at Work, Yammer, HighQ, LinkedIn Elevate… I could go on, but I’ve got this whole ADHD thing…

… anyway. Businesses large and small are adopting enterprise social networks to supplement, or in some cases replace, traditional email. And it doesn’t stop there. Slack’s new advertising campaign says that in addition to helping users reduce business emails by half, they’ve reduced meetings by more than 25%.

How are they eliminating emails and meetings? Through messaging. Instant messaging. It’s all part of the collaborative process. Who really wants emails, anyway?

Well, the opposing party in discovery, for one. Courts regularly require production of intra-company messages just as they do emails. See Pemex Exploracion y Produccion v. BASF Corp., No. CIV.A. H-10-1997, 2013 WL 5514944, at *36 (S.D. Tex. Oct. 1, 2013). And you know that thing about evidence you have a duty to produce?

How to incorporate these social media trends into your client advice:

Update your clients’ document retention/destruction policies (and litigation holds) to include Enterprise Social Media.

… you also have a duty to preserve.

Face it, your clients (particularly your larger ones) absolutely hate dealing with litigation holds. They’re also generally fond of completely disobeying their own document retention/destruction programs for their own stuff (in my experience, anyway).

Maybe it’s human nature. We keep stuff we like for a lot longer than we should (just check your fridge, guys, if you doubt me on this one). We also like to get rid of anything unpleasant.

In litigation, this is usually referred to as “spoliation” – a word that usually comes right before you lose your ass in a big lawsuit. What’s more, I still have to deal with some clients whose employees feel that a company email account is somehow more private and less formal than a letter.

How do you think they’re going to treat messages on Facebook at Work?

If for no other reason than to cover your own ass, put this advice high on your to-do list in 2016. Or better yet, give your clients a call right now.

4) Image and Video Recognition come to Social Media

Don’t you just love being able to hit “Ctrl-F” when you’re searching through a long document or website to get what you need? I love it. We have search engines like Google that do that exact thing for us, except across the internet.

We search for words. Well, a picture is worth a thousand words… so wouldn’t it be easier to just search for the picture?

Yes. And 2016 is likely to be the year you can!

Tools like Gaze allow you to search a social media network for a certain image, like a logo. Given the how visual social media has become, with high-resolution images and the proliferation of video tools, the ability to search social media for select images is a powerful tool.

How to incorporate these social media trends into your client advice:

Get your clients familiar with the intricacies of the DMCA.

The lifeblood of successful social media marketing in 2016 is going to be high-quality images and video (including video in Virtual Reality). Your clients are likely to be spending a good bit of money on their social media marketing next year, with many companies already pledging to increase their marketing budget over 2015.

However, your clients’ best ads can be the thing federal lawsuits are made of if they’re not careful about what else is in the image. And you had better believe that the attorneys who lose the patent troll business  will jump on the opportunity to make sure your clients get DMCA takedown notices.

With image recognition and analysis, any company will be able to monitor the appearance of their protected logos and marks across social networks. If you don’t think they’ll take full advantage of that, you’ve never had a song owned by BMI playing softly in the background of a video – recorded in a mall where the song was playing over the PA system – only to have the video blocked from YouTube as a result.

5) Live-Streaming on Social Media will be Everywhere

Social media networks like Meerkat, Periscope and Blab have remade the social media landscape in less than a year, and marketers took notice. The ability of anyone to hop on these networks and broadcast a message – or a conversation – live provides credibility and authenticity that can’t be bought.

People and businesses were broadcasting from everywhere, starting with SXSW, and extending to speeches, political events, protest rallies and… movie theaters.

Yep, the rise of live-streaming social media has presented an entirely new set of issues for anyone who uses the apps. More importantly, it’s created a new danger for anyone who makes money putting on live events.

So much so that at the Amy Schumer stand-up show in Charlotte on Saturday night, security was informing people who were simply using their phone to check Facebook or send a text that cell phone use was not allowed. In Time Warner Cable Arena – no small venue (15,000 people).

So it’s a particular concern that live-streaming media is going to continue to proliferate. Meerkat can be connected to every X-Gamer’s favorite tool – the GoPro Camera – to live broadcast pretty much everything (not great news, either, considering that certain Toyota vehicles are apparently going to come pre-equipped with GoPro dash cameras).

How to incorporate these social media trends into your client advice:

Provide a legal checklist to any clients who consider using live-streaming in their business.

Any company (and really any individual, for that reason) that wants to use live-streaming social media for anything remotely connected to a commercial purpose needs to be vigilant. Here is a relatively generic 5-step checklist to go through before they broadcast:

1) Choose an appropriate location.

The best place to broadcast any live-stream that’s remotely commercial is from a property owned by your client. If they’re broadcasting from another location, make sure that your clients obtain a release.

2) ALWAYS know who is in your broadcast.

If your client’s broadcast has any type of commercial purpose, then anyone in your client’s broadcast has their own likeness rights.

These rights are primarily concerned with a person’s face, and are particularly applicable if the person is interviewed or is a speaker in the broadcast. So get a release that specifically and plainly waives likeness rights from anyone who will be in your client’s live broadcast.

3) Make sure the broadcast is free of intellectual property and trademarks.

This part isn’t the easiest, particularly since it seems like nearly every piece of clothing in existence has a logo on it. While some companies might not mind having their logo appear in your broadcast, some might. Get a release.

Further, take a look at the area in which you’ll be recording the broadcast. Is there any artwork? What about the computers in the background, can you see the logo? Will there be any music playing that is subject to copyright? (As I discussed before, it only has to be audible to potentially be in violation!)

4) Consider posting crowd waivers.

While this is partially a location thing, it deserves its own line: the “public places” exception to a person’s expected right of privacy does not apply to commercial use. Sure, you’re broadcasting from a public park, and these people should know they don’t have an expectation of privacy.

They still have a right not to to have a recording of themselves used for a commercial purpose. So if there’s a chance someone will appear in your broadcast, get them to sign a waiver. Also, make sure you post crowd waivers – if someone deliberately wanders into your broadcast, at least you can point to the crowd waiver if trouble arises.

5) ALWAYS make sure your clients truly understand the Terms of Service.

This part may be the most overlooked, and simultaneously the most important aspect of live-streaming for any commercial business. To understand how important this is, take a look at this excerpt from the Blab TOS:

“You automatically grant us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, display, reproduce, transmit, modify (e.g. re-format, excerpt), re-arrange, distribute, and archive your User content on BLAB for the purposes of operating, organizing, promoting, and providing the Site and App to you and to our other current and prospective users. These are in addition to any other rights under separate licenses to User Content…”

(emphasis added).

That looks a little bit important, doesn’t it? If your clients are using live-streaming social media as part of a carefully crafted marketing campaign – which usually involves extensive planning and substantial financial expenditures – this language might cause some concern.

These legal issues haven’t stopped businesses and marketers from utilizing the live-streaming platforms available. However, when you’re advising your client, your job is first to make sure they don’t need to worry about major legal issues.

6) Social Media is Becoming a Go-To Customer Service Channel

As I discussed in Part 2:

This one might surprise you, but pretty much anytime I have an issue with some form of technology, the first place I go is Twitter. First, I can get a real-time look at whether people are talking about the same issue I’m having (like website issues). Second, simply by including the company’s twitter handle in a tweet, I let them know I’m having an issue.

You know what? They usually respond in minutes. If not sooner.

One social media marketing expert points to a reason – when we talk about someone on social media, we’re expecting a response. She said that failure to respond is always noticed, and usually changes her opinion about that company.

How to incorporate these social media trends into your client advice:

Strongly encourage a detailed social media response policy.

Social media can be tricky. You have limited time to respond to issues, and generally speaking, your responses are public and forever. Saying the wrong thing, unlike when responding over the phone, can result in not only a lost customer, but in a PR nightmare.

Besides, those people seeking your clients out for customer service issues are likely not going to be in the best mood. A quick response with helpful information can boost that customer’s confidence. The opposite? Well…

(I was going to put an image here from a famous U.S. Airways issue, but… well…
if you want to see it, click here.)

A strong social media policy, which makes it clear who has access to your client’s accounts to respond to customers, and details how those responses should  be handled is critical. Also, if your client is going to have a social media account open, make sure that it’s properly staffed. Unresponsive is the enemy:

These problems can be avoided, along with the legal headaches that come with them. A little advice can go a long way!