New guidance for lawyers on the ethics of social media use (Attorney At Work, 23 Oct 2014) – Do you need advice about the ethics issues involved in social networking? Chances are your questions will be answered by the Pennsylvania Bar Association’s recent Formal Opinion 2014-300. The 18-page opinion addresses issues that are important for lawyers in every state. The Pennsylvania opinion rests on the premise that Rule 1.1 of the Model Rules of Professional Conduct requires lawyers to have “a basic knowledge of how social media websites work,” as well as the ability to advise clients about the legal ramifications of using the sites. The Pennsylvania Bar Committee offers conclusions about 10 ethics issues involved in the use of social media for business purposes by lawyers and clients. Also, the committee emphasizes that lawyers should always assume their use of social media may be subject to the rules of professional conduct. The topics addressed in the opinion are well supported with rules and opinions from many states. The bar committee reached the following conclusions * * *

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A plan to untangle our digital lives after we’re gone (NPR, 23 July 2014) – Ancient peoples sent their dead to the grave with their prized possessions – precious stones, gilded weapons and terracotta armies. But unlike these treasures, our digital property won’t get buried with us. Our archived Facebook messages, old email chains and even Tinder exchanges will hover untouched in the online cloud when we die. Or maybe not. Last week, the Uniform Law Commission drafted the Uniform Fiduciary Access to Digital Assets Act , a model law that would let relatives access the social media accounts of the deceased. A national lawyers’ group, the ULC aims to standardize law across the country by recommending legislation for states to adopt, particularly when it comes to timely, fast-evolving issues. “Where you used to have a shoebox full of family photos, now those photos are often posted to a website,” notes Ben Orzeske, legislative counsel at the ULC. That shoebox used to go to the executor of the deceased’s will, who would open it and distribute its contents to family members. The will’s author could decide what she wanted to give and to whom. The Uniform Fiduciary Access to Digital Assets Act aims to make the digital shoebox equally accessible. “This is the concept of ‘media neutrality,’ “ Orzeske explained. “The law gives the executor of your estate access to digital assets in the same way he had access to your tangible assets in the old world. It doesn’t matter if they’re on paper or on a website.” It turns out those terms-of-service agreements Internet users usually click through without reading include some strict rules: The small print on sites like Facebook and Google specifies that the user alone can access his or her account. But the ULC’s proposed law would override those contracts, Orzeske said. [see also Tech seeks life after death for accounts (The Hill, 24 July 2014)]

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Annual review of social media policies may not address regulatory risks, says expert (Out-Law.com, 14 July 2014) – Technology law specialist Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said that businesses that only conduct a review of social media strategy once a year may be exposing themselves to legal risks. “There have been a number of recent changes to the law and the way that regulators are approaching the law as well as number of forthcoming changes that highlight the need for companies to conduct a more regular review of their social media use than just annually,” Scanlon said. “For instance, enforcement action by the Financial Conduct Authority last month indicates the approach the regulator is willing to take against financial services companies that breach rules on financial promotions. Rulings by the Court of Justice of the EU have also raised the prospect of firms having to think more carefully about how they process personal data, even if published elsewhere. Both of these examples raise compliance issues in a social media setting,” he said. Scanlon also pointed to changes to defamation laws in England and Wales which came into force earlier this year as an issue that could impact on social media use, and further identified existing copyright and communication laws , as well as advertising and consumer protection rules , that must be adhered to by companies publishing on social media. “There are many issues that organisations must be aware could affect them as a result of engaging with customers via social media,” Scanlon said. “Most organisations will likely be aware of their basic obligations, such as those to do with data protection and defamation, but there are some legal changes that may go unnoticed unless there are regular reviews of social media strategy scheduled.”

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