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CCCA_V7No4_Dept-SocialMedia-FIN_CCCA_V6No4 13-11-25 12:16 PM Page 14 Social media Is Facebook your friend? The hidden hazards and opportunites of social media. By Stephen Antle oday social media are as main- Tstream in business and law as smart phones and email. But, like most new technologies, they bring risks to be managed and opportunities to be exploited. On the legal front, LinkedIn has 250 million users worldwide; by 2011 it was already the second most well-known legal directory (after Martindale-Hubbell) to U.S. in-house legal counsel, according to a BTI Consulting Group survey. But the in litigation, and the confidential nature of will tweet or post on their Facebook page LinkedIn practice of inviting users to arbitration, may not be practically able to information they would never email. We’ve endorse one another’s skills raises ethical prevent disclosure on social media sites; all heard of the “smoking gun” email. issues. Many North American law soci- Think of the potential for social media. eties forbid lawyers from describing • Social media posts are “documents” that The most effective and efficient dispute themselves as “specialists” or “experts.” must be preserved and, if relevant, dis- resolution mechanism is preventing Does accepting LinkedIn endorsements closed to the other parties in an arbitra- disputes from arising in the first place. violate those restrictions? U.S. lawyers are tion or lawsuit; The best way to do that is to thoroughly debating the issue at length, and the understand new business partners before Florida Bar Association has begun to reg- • Removing information from social deciding to enter into relationships ulate. Canada won’t be far behind. media sites can be spoliation of evidence. with them. Social media provides a price- On the business front, corporate priva- less information opportunity for that. cy, communication and document preser- It’s also important to remember that, Doing a social media search on the other vation policies now must deal with social once any of this confidential information parties to a proposed relationship or trans- media. Here are some of the issues: gets on social media, a business has little action should be a standard part of busi- control over it. Just ask JK Rowling’s ness due diligence. • Posting confidential business informa- lawyer, who let slip to his wife’s best But even here social media raise new tion can be a breach of confidentiality friend that Rowling had in fact written issues. For example, someone who posts obligations in a business contract; The Cuckoo’s Calling. The friend tweeted a information on social media probably has journalist and the whole world knew. no reasonable expectation of privacy • Posting information about a transaction But social media has many potential about it. But would it be ethical to or dispute can waive lawyer-client priv- benefits for business as well. For example, “friend” someone on Facebook just to ilege over legal advice; it includes lots of potential due diligence gain access to that kind of information as information. For reasons no one really part of business due diligence? ISTOCKPHOTO.COM • The sealing orders that protect confiden- understands, just as people will say things in When business disputes do arise, social tial business information from disclosure email they would never say in a letter; they media can also be a useful investigative 14 CCCA Canadian Corporate Counsel Association WINTER 2013