Social Networking Blogging and Social Networking: Current Legal Issues

By Cydney Tune and Marley Degner

ome courts are enthusiastic and open-minded about the growth of communication over the Internet, viewing the Internet as an ideal medium for free speech that encourages others to focus on the message rather than on the wealth or appearance of the speaker. Other courts are extremely suspicious of the Internet and everything they find there. The Internet has opened new channels of communication and self-expression . . . Countless individuals use message boards, date matching sites, interactive social networks, blog hosting services and video sharing Web sites to make themselves and their ideas visible to the world. While such intermediaries enable the user-driven digital age, they also create new legal problems.1 The internet . . . is a major modern tool of free speech and freedom both here and abroad.2 While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation . . . [A]nyone can put anything on the Internet.3 The law always seems to lag two steps behind technology, and everybody agrees that the growth of the Internet is
Cydney Tune practices in the San Francisco office of Pillsbury Winthrop Shaw Pittman LLP, where she leads the firms copyrights practice section and media & entertainment industry team. She represents and advises clients in a broad range of intellectual property issues and has extensive experience in complex litigation. Ms. Tune represents a variety of clients, including virtual world service providers, social networking Web sites, Internet companies and other companies that conduct business online, broadcasters, associations, and gaming companies, among others. The Daily Journal named Ms. Tune one of 2008s Top 10 Copyright Lawyers in California, and she was recently voted by her peers as among the Best Lawyers in America in the entertainment law category. Marley Degner is an associate in the litigation department in the San Francisco office of Pillsbury Winthrop Shaw Pittman LLP. 2009 Pillsbury Winthrop Shaw Pittman LLP.

posing new and complex legal questions.This article will explore current legal issues related to blogging and social networking, including: 1. Section 230(c) of the Communications Decency Act; 2. Section 512(c) of the Digital Millennium Copyright Act; 3. Employment; 4. The First Amendment; 5. Whether bloggers are journalists; 6. Privacy; and 7. Attorney ethics.

Definitions
Blogs and social networking sites lack a clear definition, and courts that have tackled the task of defining them have either relied on dictionary definitions or have used general or vague definitions. The term blog is short for Web log, and a blog contains entries that are typically presented in reverse chronological order and are self-edited. Many blogs contain RSS feeds, which notify users when content is updated. a blog being a type of online diary posted to a website . . . .4 A blog: is an online personal journal with reflections, comments, and often hyperlinks provided by the writer.5 MySpace.com is a social networking web site that allows its members to create online profiles, which are individual web pages on which members post photographs, videos, and information about their lives and interests. The idea of online social networking is that members will use their online profiles to become part of an online community of people with common interests.6
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The Communications Decency Act
Section 230 of the Communications Decency Act (CDA) immunizes blogs and social networking sites from liability resulting from the publication of information provided by third parties. Web sites that, in whole or in part, create or develop contested information are deemed information content providers under the CDA and do not benefit from the protection of 230. A Web site may select material for publication, have the power to edit or remove that material, and may even make minor edits to the material without losing statutory protection. But, according to a recent Ninth Circuit decision, a Web site can neither explicitly request defamatory or otherwise illegal material from third parties nor channel or categorize the information that it receives from third parties without losing 230 immunity. The CDA is most often invoked in the defamation context, but several courts have expanded it to cover other types of claims, such as negligence. A number of courts have weighed in on the scope and applicability of CDA protection: Fair Housing Council of San Fernando Valley v. Roommates.com, LLC.7 A local fair housing council sued the operator of Roommates.com, an online roommate matching Web site, alleging that the operator violated the Fair Housing Act and state laws. A three judge panel of the Ninth Circuit found that Roommates.com was not protected by the CDA when it asked questions to create member profiles and when it channeled the information based on members answers to the questions but that it was immune in regard to the Additional Comments section of the site, because it did not solicit any particular information for that section. The test for determining whether an interactive computer service is responsible in part for creating or developing information under 230(c) of the CDA is whether it (1) categorizes, channels, and limits the distribution of information, thus creating another layer (meta-layer) of information and (2) whether it actively prompts, encourages, or solicits the unlawful information. The court opined that a Web site operator would be liable if users provided defamatory, private, or otherwise unlawful information in direct response to questions and prompts from the Web site. Upon rehearing en banc, the Ninth Circuit affirmed the panels decision in pertinent part.8 This opinion has created uncertainty for social networking sites that rely on 230 to shield them from claims relating to content that their users create but that they categorize and channel to other users.
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Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.9 A public interest consortium filed suit against Craigslist for violations of the Fair Housing Act for allowing advertisements that indicated discriminatory preferences. While Judge Easterbrook writing for the court affirmed the trial courts grant of defendants summary judgment, he stated that 230(c)(1) does not grant immunity to anyone. Rather, 230(c)(1) is definitional and removes online services such as Craigslist from the ranks of publishers and speakers for the purposes of substantive law. Carafano v. Metrosplash.com, Inc.10 Carafano, an actress, brought an action against a commercial Internet dating service based on a third partys submission of a false profile attributed to her that included her private contact information.The court held in this 2003 case that Metrosplash was not an information content provider within the meaning of the CDA and that, even if it could be considered an information content provider, it was still entitled to statutory immunity because the selection of content was left exclusively to the user and the third partys answers to the questions were fairly non-responsive in that they were so sexually suggestive and included information not requested, such as Carafanos personal contact information. The court explained that, under 230(c), so long as a third party willingly provides the essential published content, the Web site operator receives full immunity regardless of the specific editing or selection process. This statement is at odds with the decision in Roommates. com, and in Roommates.com, the Ninth Circuit repudiated the language of Carafano, which suggested that an information content provider could never be liable for posting content provided by another. Doe v. MySpace, Inc.11 The mother of a minor girl sued MySpace for negligence, gross negligence, fraud, and negligent misrepresentation after her daughter lied about her age on the site and was sexually assaulted by a 19-year-old boy that she met through the site. The court held that 230(c) immunized MySpace and opined that to impose a duty on MySpace to confirm or determine the age of each applicant would stop its business in its tracks. Doe v. SexSearch.com.12 A user of SexSearch.com sued the dating service in both contract and tort after being introduced to an underage girl who claimed to be 18, resulting in a criminal prosecution for unlawful sex with a minor. The court held that 230(c) barred both common law contract and tort claims, as well as a state statutory claim against SexSearch.com. The
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analysis should focus on whether the claim is directed toward the defendant in its publishing, editorial, and/ or screening capacities and not on the form of the pleading. DiMeo, III v. Max.13 One blogger, DiMeo, sued another blogger, Max, for defamation based on six posts composed by third parties that appeared on Maxs blogs message boards. The court held that 230(c) barred the defamation claim, because Max did not develop the offensive posts when he merely selected them for publication and edited them. Batzel v. Smith.14 Smith sent an email to the moderator of a museum security and stolen art listserv that stated his belief that Batzel owned paintings looted during WWII. Smith was unaware that the moderator would publish the email to the international listserv and a Web site, and Batzel sued Smith and the moderator for defamation. The panel majority held that, if a person who posted defamatory material on the Internet developed that material, that person would become the information content provider and lose 230 (c) immunity. It held that the moderator did not develop Smiths email by editing portions of it and selecting it for publication.The court pointed out that 230(c) has some troubling implications, because a service provider that cannot be held liable for posting a defamatory message may have little incentive to take such material down even if informed of its defamatory nature. Schneider v. Amazon.com, Inc.15 An author brought an action against Amazon.com for negligent misrepresentation, tortious interference, and breach of contract after Amazon had failed to remove allegedly defamatory reviews of the authors work written by third parties. The court held that Amazon was immune under 230(c). Amazon was not an information content provider even though Amazon had the right to edit or remove postings that violated published guidelines as well as a royalty-free right to use the book reviews. Ben Ezra,Weinstein and Co., Inc. v. America Online, Inc.16 The plaintiff corporation asserted claims for defamation and negligence against AOL. AOL published continuously updated stock quotation information based on information provided by two independent third parties. The court held that AOL was immune under 230(c) and was not an information content provider even though AOL had informed the third parties of data errors and had removed erroneous data from the Web site after the information had been posted.
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Blumenthal v. Drudge.17 White House employees brought a defamation action against Drudge and AOL when the Drudge Report claimed that Blumenthal had abused his wife.The court held that AOL was immune under 230(c), because the plaintiffs could provide no factual support for the assertion that AOL had some role in writing or editing the material in the Drudge Report. Zeran v. America Online, Inc.18 Zeran sued AOL for negligence for failing to remove a false advertisement offering T-shirts featuring tasteless slogans related to the Oklahoma City bombing and instructing interested buyers to call him at home to place an order. The court held that AOL was immune under 230(c) against the claim that it had unreasonably delayed in removing the defamatory messages, refused to post retractions, and failed to screen for similar postings thereafter.The court explained that the CDA necessarily protects interactive computer services from liability even after they are notified of an allegedly defamatory or threatening post, because the unsupportable legal burden imposed by potential tort liability would undermine the CDAs goal of promoting speech on the Internet.

The Digital Millennium Copyright Act

Section 512(c) of the Digital Millennium Copyright Act (DMCA) limits liability for copyright infringement from blogs and social networking sites (as well as all service providers) that allow users to post content, so long as the site has a mechanism in place that allows copyright owners to request the removal of infringing content. The site cannot receive financial benefit directly attributable to the infringing activity. YouTube and Google are currently defending multiple suits for copyright infringement and are asserting a DMCA defense. Some of the DMCA cases include: The Football Association Premier League Ltd. v. YouTube, Inc.19 Plaintiffs accuse YouTube and its corporate parent Google of engaging in massive copyright infringement for financial gain. They claim that allowing copyright holders to submit takedown notices pursuant to 512(c) of the DMCA requesting removal of infringing material is meaningless, because it is impossible for a copyright holder to find all instances of a copyrighted work that might appear on YouTube, and because YouTube users can readily repost infringing matter under different user and/or file names. Viacom International, Inc. v. YouTube, Inc.20 Viacom has sued YouTube and Google for copyright infringement,
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contributory copyright infringement, and vicarious copyright infringement. Viacom claims that the availability of a vast library of copyrighted works is the cornerstone of YouTubes business plan and that YouTube deliberately built up a library of infringing works to draw traffic to its site.Viacom is asking for at least $1 billion in damages.YouTube claims that it has followed the law as set forth by the DMCA. Recently, the district court denied Viacoms leave to amend to add a claim for punitive damages, thereby substantially reducing the amount at stake.21 Perfect 10, Inc. v. Amazon.com, Inc.22 Perfect 10 sued Google and Amazon for infringing its copyrighted photographs of nude models, among other claims. The court concluded that Googles use of Perfect 10s thumbnail images was a fair use. The court also concluded that it was fair use when users linked to infringing Web sites and made automatic cache copies of those Web sites, because the caching was noncommercial, transformative, and had a minimal impact on the potential market for the original work. The court specifically did not address whether an entity that merely passively owns and manages an Internet bulletin board or similar system violates a copyright owners display and distribution rights when users post infringing works (the YouTube question). result of an employees blogging or social networking activities. Public Employers A public employees free speech rights are more limited than the general publics. The Supreme Court has established the Pickering-Connick test for evaluating the protection afforded to speech by public employees. Public employees are not protected from discipline at work when they speak on matters of purely private concern; the threshold evaluation from Connick v. Myers23 is whether the employee was speaking on a matter of public concern. If an employees speech touches on a matter of public concern, courts then apply the balancing test from Pickering v. Board of Education24 to weigh the public employers legitimate interest in delivering efficient government services against the employees interest as a citizen in commenting on a matter of public concern. If the expression causes workplace disruption, courts will often find for the employer. Thus, if a public employee blogs or posts messages on a social networking site about something that is the subject of legitimate news interest, a court may protect the employee if the employer punishes the employee for it. But if the post disrupts the workplace, even if it was composed on the employees own time, the court may find for the offended employer. Stengle v. Office of Dispute Resolution.25 Stengle survived a motion to dismiss filed by the Pennsylvania Department of Education. She alleged that she was fired because of the content of her blog rather than because of the fact that she had a blog. She claimed that her speech touched on matters of public concern and thus that she was fired in violation of her First Amendment rights. San Diego v. Roe.26 Roe, a San Diego police officer, made a video of himself stripping off a police uniform and masturbating and sold it on the adults-only section of eBay. After his supervisor discovered his activities, he was dismissed from the police force. He brought a suit alleging that his termination violated his First Amendment rights. The Supreme Court held that the Pickering-Connick test governed the case, that Roe had taken deliberate steps to link his videos to his police work in a way that was injurious to his employer, and that his expression did not qualify as a matter of public concern under any view of the public concern test. Thus he failed the threshold Connick inquiry. Pereira v. Commissioner of Social Services.27 The court held that a racist joke that Pereira, who was an investigator
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Employers
A developing area of the law that implicates both blogging and social networking concerns employees who are punished for expressing themselves on the Internet both at work and on their own time. Private Employers Private employees have little recourse if they are fired for what they write on blogs or social networking sites, because a private employer does not engage in state action. For instance, in 2004 Delta Airlines fired a flight attendant for keeping a blog in which she posted provocative pictures of herself in her flight attendant uniform. The woman sued Delta, claiming that it had no corporate policy on employees and blogging. Private employers cannot fire employees because of their membership in a protected class, for whistle blowing, or for certain union-related activities, however. A private employer must be careful not to fire or discipline an employee for the contents of their blog if the employee blogs about their membership in a protected class or uses their blog to expose company misconduct or corruption. Employers should always be able to articulate a legitimate business reason for any adverse employment action taken as a
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at the Department of Social Services, told at a political event was not protected speech on a matter of public concern and that the interest of the Department in promoting the efficiency of its public services outweighed Pereiras interest in telling the joke, even when she was not on the job. Pereira suggests that, if a public employees post on her blog, composed outside of work, disrupts that employees ability to perform her job and the post is perceived or characterized as offensive and not touching on a matter of public concern, the employee could be legally terminated for blogging. should be shot and killed. The school did not violate the First Amendment in disciplining the student, because it was reasonably foreseeable that the icon would come to the attention of school authorities and create a risk of substantial disruption within the school environment. A.B. v. State.31 A.B. created a fake MySpace page for her former middle school principal, and a trial judge found that comments on the page constituted criminal harassment.The Court of Appeals reversed, finding that the free speech component of the Indiana State Constitution protected the comments that A.B. had posted, because her challenge to the schools antipiercing policy was political speech. The Supreme Court of Indiana agreed with the Court of Appeals ruling, but not its rationale.Without reaching the First Amendment issue, the Supreme Court held that the state had failed to prove the intent required for criminal harassment. Morse v. Frederick.32 Frederick, a high school student, brought a 1983 action against his principal and the school board alleging that his First Amendment rights had been violated by his 10-day suspension for waving a banner that read BONGHiTS 4 JESUS at an offcampus school-approved event. The Supreme Court held that principal Morse did not violate Fredericks free speech rights by confiscating a banner that she reasonably viewed as promoting illegal drug use.While the rule in Morse was ostensibly limited to speech promoting drugs, lower courts are now more likely to uphold a schools decision to discipline a student for blogging or social networking. Layschock v. Hermitage School Dist.33 The court initially upheld a schools punishment of a student for creating a fake MySpace page in the name of his principal. A federal judge recently ruled, however, that the suspension was unconstitutional and ordered a jury trial to determine whether the student was entitled to compensatory damages for the violation of his First Amendment rights. The judge held that the school had failed to prove that the Web site, which was created off-campus, caused any disruption to the school day. C.N. v. Wolf.34 An openly gay student stated a claim against her principal for violation of her rights of equal protection and free expression when she alleged that her principal had threatened to expel her and to have her arrested and her personal computer confiscated for her off-campus blog entry.
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The First Amendment

Most of these cases arise in the education context. Generally, schools can discipline students for off-campus blogging and social networking activities that are likely to cause disruption at school, unless the expressive content is classified as political speech. Key cases include: In re Zyprexa Injunction.28 A reporter from the New York Times acted in conjunction with an attorney to fraudulently obtain confidential and sealed documents related to litigation against the drug company Lilly. The court refused to enjoin the named Web sites from posting the confidential documents, because it held that prohibiting only five of the Internets millions of Web sites from posting the documents would not substantially lower the risk of harm to Lilly. Doninger v. Niehoff.29 The court held that a student leaders blog on Livejournal.com, written in response to school officials actions regarding scheduling of a music festival, was on-campus speech for purpose of First Amendment claims, because the blog was related to school issues and it was reasonably foreseeable that other students and administrators would view or become aware of the blog. The court found that the student had failed to satisfy her burden of showing that there was a substantial likelihood of succeeding on her claim that the schools actions in banning her from running for class office violated her constitutional rights. The court emphasized that it was not deciding whether and when a school could suspend, discipline, or remove a student because of the content of a blog or email that the student prepared off-campus. The student has appealed. Wisniewski v. Board of Educ. of the Weedsport Cent. School Dist.30 The Second Circuit upheld a schools suspension of one of its students for using an instant messenger icon that suggested a certain teacher at the school
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Are Bloggers Journalists?
Increasingly, bloggers are breaking major news stories or offering their blogs to the public as an alternative and independent source of news. In most jurisdictions, traditional journalists are protected by both a First Amendment privilege and a state statutory privilege. State statutory privileges are often significantly more protective of journalists than the constitutional analogue. Non-traditional journalists, such as student journalists, have generally been successful in invoking the constitutional privilege, but they have often had difficulty invoking the statutory privilege. Most state shield laws define the protected class more narrowly than the First Amendment privilege does by focusing on the claimants affiliation with a type of news entity rather than on the intent the claimant had in gathering the information. Courts generally have not found a reasonable expectation of privacy in communications made on Web sites, email, or chat rooms. There are recurring debates in Congress over whether to introduce a federal shield law for reporters, but one of the issues blocking passage of such a law is whether bloggers would receive protection under its coverage. There are no published cases that decide whether a blogger is a journalist. Cases that touch on the relevant issues include: Wolf v. United States.35 Video blogger and freelance journalist Wolf was jailed by a federal district court for refusing to turn over a collection of videotapes that he had recorded during a demonstration in San Francisco. The federal prosecutor argued that Wolf did not meet the statutory definition of a journalist under California law. The court agreed that Wolf would not be protected under Californias Shield Law had the case been brought in state court, because he was not connected with or employed by a traditional news source. The court stated that the usual concerns in cases involving journalists did not apply, because Wolf had simply videotaped what people were already doing in a public place, and he did not promise anyone anonymity or confidentiality. OGrady v. Superior Court.36 The California Court of Appeal interpreted the terms magazine and other periodical publication in Californias reporter shield statute to embrace Web sites and blogs. The court
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observed that there is no apparent link between the core purpose of the law, which is to shield the gathering of news for dissemination to the public, and the characteristic of appearing in traditional print, on traditional paper. BidZirk, LLC v. Smith.37 In this defamation case, the court used a standard that examined the content and intent of the contested online material and not the format it was presented in (a blog format) and classified the article in question as journalism.

Privacy
When Can Anonymous Bloggers Be Unmasked? It is clear that anonymous Internet speech is entitled to First Amendment protection. In allowing a defamation plaintiff to unmask an anonymous blogger, some courts apply a good faith standard, while others require plaintiffs to support their defamation claim with facts sufficient to defeat a summary judgment motion. Under the good faith standard, the plaintiff who wishes to unmask an anonymous blogger in a defamation action must establish (1) that they have a legitimate, good faith basis upon which to bring the underlying claim, (2) that the identifying information sought is directly and materially related to their claim, and (3) that the information cannot be obtained from any other source.The following decisions discuss the appropriate standard. Doe v. Cahill.38 In order to unmask an anonymous blogger accused of defamation, a plaintiff must satisfy a summary judgment standard and not a good faith standard, because the good faith standard is insufficiently protective of the First Amendment right to speak anonymously. A public figure defamation plaintiff need not produce evidence of actual malice to satisfy the summary judgment standard. Krinsky v. Doe 6.39 A Florida plaintiff sued 10 anonymous defendants for posting allegedly defamatory remarks on a Yahoo! message board. In granting one defendants motion to quash the subpoena that would have required the ISP to identify him, the California Court of Appeal disagreed with the Cahill summary judgment standard. The court announced a rule that requires plaintiffs to make a prima facie showing of the elements of libel in order to defeat an anonymous defendants efforts to remain anonymous.
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Privacy Is an Increasing Concern Courts generally have not found a reasonable expectation of privacy in communications made on Web sites, email, or chat rooms. Although courts are generally unwilling to recognize a reasonable expectation of privacy in material that people both willingly post on the Internet and take no steps to limit access to or otherwise protect, the public is forcing at least one major social networking site to better safeguard privacy, and Congress has started to address the privacy issue as well. A Facebook feature allowing users to more easily track changes that their friends have made to their profiles backfired when many users threatened protests and boycotts out of privacy concerns. Facebook quickly apologized and agreed to let users turn off the feature. Facebook had to apologize to users again after it started attaching the names and photographs of users to advertisements targeted at their friends for products that they had used. Many users felt that the marketing campaign invaded their privacy, and Facebook quickly agreed to let users opt out of the program permanently. Last year, Republican lawmakers asked for a hearing on Google Inc.s $3.1 billion purchase of DoubleClick, Inc., because they wanted to know how the combined company would use the data that it collects from consumers. The consumer protection subcommittee of the Energy and Commerce Committee held hearings on the DoubleClick sale and other privacy issues early in 2008, but despite concerns, both the Federal Trade Commission and European regulators approved the deal. Google started a privacy channel in 2007 on its YouTube video site to give consumers more information about how it uses and safeguards their personal data. Some of the important cases discussing privacy issues and social networking or blogging include: Steinbuch v. Cutler.40 Cutler, while working as a staff assistant to a Senator, created a blog called Washingtonienne. Cutler posted entries that detailed her sexual activities with various men, including Steinbuch. Although Cutler referred to Steinbuch by his initials, she supplied other identifying details, and he was, in fact, publicly identified. Another blog, written by Cox, posted a link to Cutlers blog, which expanded her audience. Steinbuch brought an action against Cutler and Cox for two claims of invasion of privacy and one claim of intentional infliction of emotional distress. The claims against Cox were dismissed. In June 2007, the court stayed the case following Cutlers filing of Chapter 7 bankruptcy. Cutler was fired from her job when her boss discovered her blog.
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Doe v. Ashcroft.41 An Internet service provider that received an FBI National Security Letter (NSL) requiring production of customer records brought an action challenging the Patriot Act provisions authorizing such letters and permanently barring disclosure of receipt of NSL letters. The court held that the NSL violated the Fourth Amendment as applied because it effectively barred or substantially deterred any judicial challenge to the propriety of an NSL request.The court also concluded that the permanent ban on disclosing receipt of an NSL letter, which it could not sever from the remainder of the statute, operated as an unconstitutional prior restraint on speech in violation of the First Amendment. Commonwealth v. Proetto.42 The court found that no reasonable expectation of privacy existed as to either sexually explicit messages sent by a man to a 15-year-old girl or to electronic chat room conversations between them, because once the girl received the emails, she could forward them to anyone, and people in a chat room often impersonate others.

Attorney Ethics
Attorneys have become increasingly reliant on the Internet for many aspects of their practice, including their Web sites, email correspondence, research activities, and marketing. They frequently use the Internet to communicate with clients and prospective clients, and more attorneys author work-related blogs or belong to social networking sites such as Facebook and MySpace. Several law firms, both in the United States and Europe, have even opened offices in Second Life, an Internet-based virtual world, to perform real legal functions. There are five major categories governed by attorney ethics regulations that are relevant to blogging and social networking: (1) communications, (2) solicitations, (3) advertisements, (4) the unauthorized practice of law, and (5) the creation of an inadvertent attorney-client relationship. Communications Email and Web sites, including blogs and profiles posted on social networking Web sites, constitute communications between an attorney and a client if potential clients have access to them. The ABA Model Rule 7.1 requires a lawyer to avoid false or misleading communication about the lawyer or his services. A lawyer must ensure that what she says on her blog and on social networking sites is true, unless she restricts access to the blog or profile.
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Solicitations The general rule for attorneys is that written solicitation is permissible, unless the prospective client has made known a desire not to be solicited or the solicitation involves coercion or duress. In-person or telephone solicitation by attorneys is prohibited, except of a close friend, relative, former client, or current client. Model Rule 7.3(a) provides limited guidance on attorney solicitation via the Internet by distinguishing between electronic communications and real-time electronic contact. Emails constitute electronic communication and are governed by the rules for written solicitations, because they are not likely to put potential clients on the spot. Real-time electronic communication, however, such as instant messaging, has the potential to put a prospective client on the spot and create an environment in which coercion is possible and thus is considered comparable to prohibited inperson or verbal solicitation. For example, a California State Bar ethics opinion found that an attorneys communication with a prospective fee-paying client in a mass-disaster victims Internet chat room violated Rule 1-400 of the States Rules of Professional Conduct.43 Attorney blogs and social networking profiles should contain a disclaimer, making it clear that information provided on the blog or social networking site is not intended to create an attorney-client relationship. Ethics committees in several states, including Florida, Michigan, Oregon, Utah, Virginia, and West Virginia, have concluded that messages delivered via the Internet in real time are prohibited solicitations. In California, Interim Opinion No. 96-0014 concluded that a Web site was not a solicitation. The site that was the subject of the opinion did not include live video interactivity, a bulletin board, links to other law-related Web sites, or news group functions, however. It would seem that messages posted on blogs are not communicated in real time, but what about a blog that is updated daily? Hourly? What if the author of the blog permits others to comment on postings (a common practice) and then responds to those comments soon after they are made? It would also seem that messages posted on social networking sites are not communicated in real time, but what if two users of a social networking site, one an attorney and one a potential client, are both logged into
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the site at the same time and each can see that the other is logged in and responding to messages? This situation would seem more analogous to a chat room than to a Web site and thus would probably constitute real-time electronic communication with all its potential for impermissible coercion. Advertisements The ABA Model Rules cover blog and social networking advertising in Rule 7.1 by including electronic communication as one of the types of communications that can constitute advertising. There are several ethics opinions that clearly indicate that a Web page is an ad. There are no ethics opinions on whether profiles posted on social networking sites are ads. Many attorneys author respected blogs that focus on particular areas of the law, such as How Appealing (http://howappealing.law.com), which bills itself as the Webs first blog devoted to appellate litigation and Sentencing Law and Policy (http://sentencing.typepad.com). Such blogs undoubtedly garner paying clients for their attorney authors. In fact, some employers encourage employees to run work-related blogs to become known as an expert in their field and to attract new business. There is a huge multi-jurisdiction problem with advertising on both blogs and social networking sites, because the Internets audience is not limited by state or even country. Every state has idiosyncratic attorney advertising rules, and it would be virtually impossible to comply with all the states rules at the same time because some are mutually contradictory. Some states, such as Florida, Nevada, and New Jersey, require approval or even pre-approval of ads. The Unauthorized Practice of Law The prohibition on the unauthorized practice of law can be particularly problematic because clients and prospective clients are reached by an attorneys blog or social networking profile in all states simultaneously. Based on the personal jurisdiction cases that have arisen so far, it appears that courts would be most likely to find that the operator of a highly interactive blog or social networking profile, on which business is conducted, is engaged in the unauthorized practice of law and least likely to find that the operator of a fully passive blog or social networking profile is engaging in the unauthorized practice of law. Running a virtual law firm in a place such as Second Life has enormous potential to subject an attorney to the charge that he or she is engaging in the unauthorized practice of law in a jurisdiction in which he or she is not licensed to practice.
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Social Networking
The Creation of an Inadvertent Attorney-Client Relationship In general, courts and other disciplinary bodies have found that an attorney-client relationship exists when the client reasonably relies on the advice of the attorney. The test focuses on the clients subjective perceptions and beliefs. Attorneys must take care that undesired attorney-client relationships are not unwittingly formed by blogging or maintaining a profile on a social networking site. Attorney blogs and social networking profiles should contain a disclaimer, making it clear that information provided on the blog or social networking site is not intended to create an attorney-client relationship. Disclaimers of any and all liability that might arise from the contents of the blog or social networking profile could also be used. Such provisions may not be enforceable unless a user affirmatively accepts the terms, however. Disclaimers are also likely to be unenforceable if they are inconsistent with the subsequent conduct of the parties.
14. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). 15. Schneider v. Amazon.com, Inc., 108 Wash. App. 454 (2001). 16. Ben Ezra, Weinstein and Co., Inc. v. America Online, Inc., 206 F.3d 980 (10th Cir. 2000). 17. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). 18. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). 19. The Football Association Premier League Ltd. v. YouTube, Inc., (S.D.N.Y. complaint filed May 4, 2007). 20. Viacom International, Inc. v. YouTube, Inc., (S.D.N.Y. complaint filed Mar. 13, 2007). 21. Viacom Intern. Inc. v. Youtube, Inc., 540 F. Supp. 2d 461 (S.D.N.Y. 2008). 22. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007), amended, 508 F.3d 1146 (9th Cir. 2007). 23. Connick v. Myers, 461 U.S. 138 (1983). 24. Pickering v. Board of Education, 391 U.S. 563 (1968). 25. Stengle v. Office of Dispute Resolution, 479 F. Supp. 2d 472 (M.D. Pa. 2007). 26. San Diego v. Roe, 543 U.S. 77 (2004). 27. Pereira v. Commissioner of Social Services, 733 N.E.2d 112 (Mass. 2000). 28. In re Zyprexa Injunction, 474 F. Supp. 2d 385 (E.D.N.Y. 2007). 29. Doninger v. Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007). 30. Wisniewski v. Board of Educ. of the Weedsport Cent. School Dist., 494 F.3d 34 (2d. Cir. 2007). 31. A.B. v. State, 885 N.E.2d 1223 (Ind. 2008). 32. Morse v. Frederick, 127 S. Ct. 2618 (2007). 33. Layschock v. Hermitage School Dist., 412 F. Supp. 2d 502 (W.D. Pa. 2006). 34. C.N. v. Wolf, 410 F. Supp. 2d 894 (C.D. Cal. 2005). 35. Wolf v. United States, 201 Fed. Appx. 430 (9th Cir. 2006). 36. OGrady v. Superior Court, 139 Cal. App. 4th 1423 (2006). 37. BidZirk, LLC v. Smith is an unreported case from the District of South Carolina 2007. 38. Doe v. Cahill, 884 A.2d 451 (Del. 2005). 39. Krinsky v. Doe 6,159 Cal. App. 4th 1154 (2008). 40. Steinbuch v. Cutler, 463 F. Supp. 2d 4 (D.D.C. 2006). 41. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004). 42. Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001). 43. California State Bar Formal Opinion No. 2004-166.

Notes
1. Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 489 F.3d 921, 924 (9th Cir. 2007), affd in part on rehg en banc, 521 F.3d 1157 (9th Cir. 2008). In re Zyprexa Injunction, 474 F. Supp. 2d 385, 393 (E.D.N.Y. 2007). St. Clair v. Johnnys Oyster & Shrimp, Inc.,76 F. Supp. 2d 773, 774-775 (S.D. Tex. 1999). In re Zyprexa Injunction, 474 F. Supp. 2d at 393. McCabe v. Basham, 450 F. Supp. 2d 916, 925 (N.D. Iowa 2006), quoting Merriam-Websters Collegiate Dictionary (11th ed. 2005). Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 845-846 (W.D. Tex. 2007). Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 489 F.3d 921 (9th Cir. 2007). Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 521 F.3d 1157 (9th Cir. 2008). Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008).

2. 3. 4. 5.

6. 7. 8. 9.

10. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003). 11. Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007). 12. Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007). 13. DiMeo, III, v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006).

Volume 26 Number 11 November 2009

The Computer & Internet Lawyer 9