social media lawyer Archives - Page 2 of 2 - Ruth Carter

No Expectation of Privacy in Public

June 6, 2013 by Ruth Carter 14 Comments

Smile, creeps! by S.mirk from Flickr (photo from the World Naked Bike Ride)

You have no expectation of privacy in anything you do or say in public.

It used to be that if you did or said something in public that you later regretted, you only had to worry about the people who saw you repeating it to others. Now that everyone carries a smartphone, you should act as if someone is taking photos and shooting video of you all the time and that the footage is going to end up all over the internet or on the front page of the newspaper.

That means if you say something racist, belittle at server for making a simple mistake, go to a strip club, or get drunk and make an ass out of yourself, you better be prepared for someone to capture that moment with their phone and share it with everyone on the internet. Once it goes out there, you have no control over who will see it.

Carter Law Firm’s Postcards

When I give talks about social media law I tell people to assume that everything they post online will be seen by their best friend, their worst enemy, their boss, and their mother. If they don’t want one of those people to see something, then they shouldn’t post it. Likewise you should assume that these people will see the footage of anything you do in public.

This rule also applies to situations where you’re in public and you don’t know that someone can see you. If you and your significant other decide to have sex in public – like at a park late at night or on the rooftop terrace of your apartment building – you’re chosing to have sex in plain view of the public. The fact that you didn’t think anyone was watching you does not give you an expectation of privacy.

Some people may order you to stop filming them, including the police. If it’s a situation that is in plain view of the public, they don’t have the right to stop you. There may be issues if you’re stalking or harassing someone, but filming a person one time is unlikely to qualify. There is a law that says it’s illegal to refuse to follow a police officer’s order so in that situation you can decide to comply and go after them later for infringing on your rights or post the footage that you have with the story of them ordering you to stop filming. You could also risk getting arrested by refusing to comply and argue to the court that the officer didn’t have valid grounds for giving you that order.

What about the wiretapping law? Arizona is a one party consent state where only one party to the conversation needs to consent to it being recorded. This prevents third parties from intercepting your phone calls or planting a bug near you to record your conversations. This law will protect you against someone spying on you, but if you’re speaking loudly enough for third parties to hear you, you have no expectation of privacy in your conversation.

One right you do maintain is the right to commercialize your image. If someone takes a photo or video of you in public and is making money off of it, you might have a claim that they are commercializing your image without your consent.

Because we live in a world where people are quick to record everything with their smartphones, think before you act. It’s best to be willing to own everything you do or say in public. That way if anyone ever confronts you with your past behavior in an attempt to humiliate you or tarnish your reputation, you can take the wind out of their sails by owning it. But you better be willing to own anything you do in every situation.

For more information about privacy and the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed or my video on this topic.

You can also subscribe to the Carter Law Firm newsletter.
You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Internet law, Photography & the Law Tagged With: Carter Law Firm, expectation of privacy, Internet lawyer, privacy in public, Ruth Carter, smartphone photo, smartphone video, social media lawyer

Could Amy’s Baking Company Bring Legal Action For Online Comments?

May 16, 2013 by Ruth Carter Leave a Comment

Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr

So social media blew up this week after Amy’s Baking Company, owned by Samy and Amy Bouzaglo, was featured on Kitchen Nightmares where Chef Ramsey walked away after he felt that the owners of the restaurant were not willing to listen to his critiques. On the show, Amy claimed that the business was hurt by “online bullies” who told lies about them.

After the show aired, the business received national attention and there were several irate posts from the owners on the restaurant’s Facebook pages – one they claim was hacked and the new one they started yesterday. According to the Phoenix Business Journal, one of the owners’ posts stated they were keeping track of who was commenting and that they “will be pursuing action against you legaly, and against reddit and yelp, for this plot you have come together on. you are all just punks.”

Well, what if Samy and Amy wanted to pursue legal action against people who left comments on their Facebook page, Yelp, or Reddit? What would they claim – infliction of emotional distress? Defamation? For the most part, sharing your opinion is protected by the First Amendment. Yelp and Reddit simply provide forums for others to share but they don’t control the content that is posted, so there’s probably not much they could do in regards to those sites themselves.

What about defamation? In Arizona, defamation requires a false statement about the plaintiff, communicated to a third party, that hurts the plaintiff’s reputation. If Samy and Amy filed defamation claims against anyone who created a post about them or their restaurant, the defendants have three main ways to defend themselves.

Defense #1: There’s no defamation if the statement was true.
If you didn’t tell a lie, there can be no defamation. If you make a statement that only contains your opinion and you told the truth about your thoughts and feelings, there can be no defamation.

Defense #2: The only part of the statement that was false was insignificant.
If the only part of your statement that was false was insignificant, there’s no defamation. For instance, if you write a bad review for a restaurant because you didn’t like their XYZ burger but it turns out you ordered the RST burger, that would be a false statement. If the only thing that wasn’t accurate was the name of the item you ordered, but your review of it was true to your experience, that misstatement would be so minor that it wouldn’t qualify as defamation. The part that was the lie likely didn’t hurt the plaintiff’s reputation.

Defense #3: There was no reputational damage.
This is my favorite of the defamation defenses. Essentially this defense says the plaintiff’s reputation is so bad that there’s nothing you could say that would make it worse. This is a very high bar to clear. I suspect you’d have to make a false statement about a modern day Hitler to have a reputation that’s this bad. In most cases, a person can have a really bad reputation but you could make it worse if you told a lie about them and said they kick puppies or molest children.

According to one of Amy’s Baking Company’s Facebook pages, they will be having a grand re-opening on May 21st. It will be interesting to see the reviews from the people who visit the restaurant that night.

If you suspect you’ve been the target of defamation, please contact an attorney in your community. If you want more information about online defamation and the defamation defenses, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

Filed Under: Internet law Tagged With: Amy Bouzaglo, Amy’s Baking Company, Carter Law Firm, Defamation, defamation defenses, defamation lawyer, internet defamation, Internet lawyer, Online bullies, online defamation, Reddit, Ruth Carter, Samy and Amy Bouzaglo, social media law, social media lawyer, Yelp

FAQs about the Legalities of Social Media

April 25, 2013 by Ruth Carter 1 Comment

Carter Law Firm’s Official Postcard – Let me know if you want me to send you one.

I had the pleasure of speaking at the Public Relations Society of America’s Western District Conference last weekend. I led two sessions: “So you want to do a flash mob” and “The Legal Side of Blogging: 10 Questions to Ask Before you Hit ‘Publish.’” Both sessions were great and I wanted to share some of the frequent questions I get when I talk about the legalities of social media.

What should you do if you’re outsourcing your blog content?
You need a kick ass contract that clearly states who owns the copyright in the content that is created. If the hiring company obtains copyright, does the blogger get permission to put a copy of the work in their portfolio to obtain other work? The contract should also state who is responsible if there are any problems related to the work (i.e., copyright infringement claim) or if there are any disputes related to the contract.

What should you do if you want to use a photo from a company’s site, such as if want to write a positive review of their company?
There’s a chance that using the photo could qualify as fair use; however it’s probably best to avoid the possibility of being hit with a copyright infringement claim by asking the company if you can use their photo. You never know who owns the rights to an image and if there are any restrictions related to using it.

What’s the worst case scenario if you use an image from Google Images without verifying that it was available for use with a Creative Commons license or had been released to public domain?
You could be sued for tens of thousands of dollars for copyright infringement. I always say that just because someone sues you that it doesn’t mean they’re going to win, but in this case, they might. You can still be sued and lose even if you didn’t mean any harm.

I get permission to use every photo on my blogs or use photos that are available under Creative Commons licenses that allow me to modify and commercialize each image.

What if you’ve been using Google Images or you haven’t kept track of what images you’re allowed to use?
Probably no one wants to hear this, but I’d rip every image out of your site and start over, making sure that you own or have permission to use every image on your site.

These are my rules of thumb when it comes to social media:

Assume everything you post online will be seen by your best friend, your worst enemy, your boss, and your mother. If you’re not ok with one of those people seeing what you want to say, don’t post it.
Don’t post anything online that you wouldn’t put on the front page of the newspaper.

For more information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

Filed Under: Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: arizona copyright attorney, Arizona intellectual property attorney, blog lawyer, Blogging, blogging law, Carter Law Firm, Copyright, copyright attorney, copyright blog, Copyright infringement, copyright law, Copyright lawyer, copyright my website, copyright online, copyright photographs, image copyright, Intellectual property attorney, internet copyright infringement, Internet Law, Internet lawyer, IP strategy, Ruth Carter, social media law, social media law firm, social media lawyer

Using the Court of Public Opinion to Stop Cyberharassment

February 28, 2013 by Ruth Carter Leave a Comment

and bullhorns by mikeinlondon from Flickr

I recently taught a seminar for the State Bar of Arizona E-Commerce and Technology section. I’m a big believer that if you’re cyberharassed, cyberbullied, or cyberstalked online that you should report it – first to the website or service where it’s occurring and then to the police if the person continues to misbehave despite being told to knock it off or if the website or service doesn’t do anything about it. She said, in her case, law enforcement wanted to pass the buck to another agency than deal with the problem themselves.

That’s discouraging. What are you supposed to do if you’re being harassed and the people whose job it is to stop this behavior are ignoring you?

My first thought was, “The squeaky wheel gets the grease.” If you keep reporting the problem, the powers that be might realize that doing their job is the best course of action because you’re not going to go away until they do. You might have to go above their heads and report them to their superiors to make this happen. A nasty letter from an attorney written on your behalf might do the trick too.

If that doesn’t work or if you’re in a situation that needs immediate attention, consider turning to the court of public opinion and publicly call your harasser/bully for their bad behavior. Use your social network to rally support for your situation. Contact the media and try to get them to run a story about it. If there’s enough public outcry, maybe the powers that be will do their jobs or the person who’s harassing you will leave you alone.

If you want to turn to the media or social media, my one word of caution is to mindful about what you say. Resist the urge to exaggerate – it might cross the line into the realm of defamation or false light. Instead stick to the facts, your feelings about the facts, and what you want to happen as a result. If you use the media or the public to try to make a change, you have to tell them what you want whether it’s contacting a certain government official, signing a petition, boycotting a business, etc. Don’t tell people to harass the person who is harassing you; that might be soliciting a crime

Be sure to keep copious records so you can back up your facts with evidence if you need to defend yourself. Some people may attack you just to try to shut you up.

My final word on this topic is if you’re going to try to use the media or the court of public opinion to resolve a problem, you’re going to have to grow a thick skin. Some people are vicious and will call you out for calling out someone else. Surround yourself with a strong group of supporters to bolster your spirits when the haters come after you.

If you’re being cyberharassed, consult an attorney in your community to discuss the best strategy to make it stop. You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Cyberbullying & Cyberharassment, Internet law Tagged With: Carter Law Firm, court of public opinion, cyber harassment, cyberbullying laws, cyberharassment, Internet lawyer, report cyber harassment, Ruth Carter, social media lawyer, ways to stop cyber bullying

Does Your Employer Have a Social Media Policy?

February 21, 2013 by Ruth Carter 52 Comments

Social Media Policy: How To Write It by cambodia4kidsorg from Flickr

Does your company handbook have a social media policy in it? And I mean a policy that talks about what you can and can’t say on your social media accounts. I don’t mean the policy that a lot of employers have about not being on Facebook and Twitter during company time or on company computers.

Seriously, go check. I’ll wait.

If you don’t have one, don’t feel bad. About a year ago 76% of companies didn’t have a social media policy. That’s disturbing. I’m surprised when I meet someone who isn’t involved in some type of social media. It’s staggering that employers haven’t kept up with the times.

People visit this site all the time looking for information about what their employers can and can’t do regarding social media – Can my employer require me to promote them with my personal Facebook account? (No.) Can my employer control my Facebook? (No.) Can my employer require me to delete my social media account? (No.) Can my employer print my Facebook pictures? (Yes.) Can I be fired for how I spend my personal time? (Maybe.) Can my employer monitor my personal Facebook page? (If it’s public, yes.)

That’s just a handful of the questions I’ve gotten in the last month.

The issue is clear – If your employer doesn’t have a social media policy, ask for one. And tell them they better check the latest report from the NLRB before they write it.

Left to their own devices, most employers will write a social media policy that says you have to promote the company with your personal accounts and/or you can’t say anything negative about the company online. Both of these provisions are illegal. The former violates Facebook’s terms of service; the later violates the NLRA.

What’s the NLRA? It stands for National Labor Relations Act. It protects employees’ abilities to talk amongst themselves about things like wages and work conditions. You’re allowed to do it publicly (even on the internet) and you don’t have to be respectful about it. If you’re ever fired for something you did on your social media account and you think it was protected by the NLRA, you can file a complaint with your employer with the National Labor Relations Board (NLRB). In the worst-case scenario, your employer will be required to give you back pay, pay you damages, and offer you your job back.

My lawyer friend who litigates these cases recently told me that $10,000 was a low amount that an employer would be ordered to pay in these situations if they fired someone for a reason that violated the NLRA.

I tell every employer that they need a social media policy that provides a list of dos and don’ts for employees. I also tell them to hire an attorney to write the policy for them to ensure that it complies with the NLRA. Then I tell them to at least have their attorney review it every 6 months. The NLRB regularly publishes new reports based on their cases so the policy that was valid when it was written may be invalid now.

This is one of those times when you can’t just download a social media policy template and call it good. This area of law is changing too often.

It’s better to pay a chunk of money now to have someone write your social media policy than to have to pay $10,000+ in back pay, damages, attorneys’ fees, plus whatever it costs for your headache and stomach pain medication to treat the stress of dealing with an NLRB investigation. This is a problem a lot of employers don’t realize they have until it’s too late, and it doesn’t have to be. Call an attorney who understands social media and the NLRB to draft your policy for you.

If this was TL:DR, I made a video. You can watch it below or here.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Employment Law, Featured Post, Internet law Tagged With: Arizona business lawyer, Can my employer control my Facebook, Can my employer monitor my personal Facebook page, Can my employer print my Facebook pictures, Can my employer require me to delete my social media account, Can my employer require me to promote them with my personal Facebook account, Carter Law Firm, Internet lawyer, Phoenix business lawyer, Phoenix small business lawyer, Ruth Carter, sample social media policy, social media lawyer, Social media policy

How To Get a Free Consultation with Ruth Carter

January 31, 2013 by Ruth Carter 2 Comments

Photo by Don McPhee

I’m excited to share that I’ve teamed up with Gangplank in Chandler to offer free legal mentoring services on the first Monday of the month from 1pm until 4pm. I can see 3 people for 45-minutes each every month at no charge.

Hello Beautiful by Gangplank HQ from Flickr

My legal mentoring hours are a great opportunity to informally bat around your ideas and questions about your projects and business. Coming to my mentoring hours does not create an attorney-client relationship between us. We won’t have any ongoing obligations to each other unless we decide to create a formal working relationship.

Gangplank provides free collaborative workspaces in Arizona, Virginia, and Canada. They provide the physical and social infrastructure for creative people to launch their startups. These are wonderful places for freelancers and new business owners to work. In Arizona, Gangplank has locations on Chandler, Avondale, and Tucson.

I love working with Gangplank. They have a fantastic group of dynamic people who have an enormous amount of creativity and drive. They have a very informal environment and they do incredible work. It fits brilliantly with my desire to be the approachable lawyer who wears t-shirts.

Skulls & Stripes by Gangplank HQ from Flickr

Gangplank in Chandler is located at 260 South Arizona Avenue. Their events calendar shows their mentors’ availability and also all their other events like their weekly brown bag presentations, hacknights, and workshops. They have a wealth of other mentors too who provide assistance in the areas of business, leadership, marketing, design, finance, and technology.

Gangplank is in charge of scheduling the mentoring hours so please check their event calendar for my availability. You can book a mentoring appointment with me by emailing them at chandler@gangplankhq.com.

Please note: my mentoring hours at Gangplank are not for my ongoing clients with whom I’ve created an attorney-client relationship. These appointments are for people who think they might need a lawyer, people who just want some general legal information, law students, anyone else who wants to chat for an hour.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Employment Law, Flash Mob Law, Intellectual Property, Internet law Tagged With: Arizona business lawyer, Carter Law Firm, Copyright lawyer, free legal consultation, Gangplank, Gangplank Chandler, Internet lawyer, Phoenix business lawyer, Ruth Carter, small business lawyer, social media lawyer, trademark lawyer

Choose Your Strategy to Protect Your Work Before Posting it on the Internet

January 17, 2013 by Ruth Carter 2 Comments

My artwork for Dans office by Romers from Flickr

A friend recently asked me about a common situation her clients face. They are artists who, before the internet, could only show their work to a large audience at art festivals. She said these artists hesitate to market their work online because they’re afraid that it could be stolen.

Could their work be illegally copied if they show it on the internet? Yes. I worked with an artist last year who had their entire catalog illegally copied.

Should they us the internet to market their work despite this risk? Probably. If you’re an artist you have to weigh the risk of having your work illegally copied against the benefit of reaching a larger audience.

My unsolicited advice to artists is to decide how you want to respond if your work is stolen before you put your work out there and plan accordingly.

If you want to sue the people who illegally copy your work, you have to register your copyrights with the U.S. Copyright Office.
If you want to license your work, meaning people can pay you for the right to reproduce your work on their sites, you need to have licensing terms and fees. This way people can legally purchase the rights to use your work and you can send a bill to the people who illegally copy your work. This recently happened to a friend of mine.
If all you want to do is force them to remove the image when you detect someone’s stolen your work, you need to understand the Digital Millennium Copyright Act or know an attorney who does who can send the proper takedown notice on your behalf.

When you put your work out there, you should be diligent about watching the internet for potential infringement. Often times people think they can use your work if they provide an attribution and a link to the original. What they’ve really done is made it easy for you to determine who is using your work without your permission.

My two cents on this issue is you shouldn’t let your fears about copyright infringement prevent you from using the internet to market your work if you’re an artist, but you should have a strategy in place in advance for dealing with it when it occurs.

For more information on this and related topics, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed, available on Amazon.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: Arizona lawyer, Carter Law Firm, Copyright infringement, Copyright lawyer, copyright registration, copyright strategy, Digital Millennium Copyright Act, DMCA takedown notice, intellectual property law firm, internet copyright infringement, Internet lawyer, IP law firm, IP strategy, Phoenix lawyer, Ruth Carter, social media lawyer

On Being an Outspoken Blogger

November 15, 2012 by Ruth Carter 2 Comments

Call a spade a spade by scarycurlgirl_photos from Flickr

I had the pleasure of speaking at TechPhx last weekend. My presentation was entitled The Legal Side of Blogging: 10 Questions to Ask Before you hit “Publish.” We had a great discussion about how to be an outspoken blogger without setting yourself up to get sued for defamation or invasion of privacy. Hat tip to Tyler Hurst who joined us via Ustream from Portland.

I walked away from the discussion with the reminder that big problems can result from little mistakes. Often times saying less is the best course of action. Sometimes it’s best to point out the dots and let your readers connect them. If there’s a news story that’s a hot topic in your community, you may want to write about the topic in general instead of the specifics about the situation. Your readers will know what you’re alluding to without having to explicitly state it.

When you’re a passionate writer, it’s important to state the facts and your feelings as they are without over-embellishing. Don’t manipulate the facts to get the message you want. Take a step back and review your work. Ask yourself what you can think, what you know, and what you can prove. When something is a rumor or an allegation, state that and cite your source when you can. Always be mindful of the fact that you can be sued for defamation if you repeat someone else’s defamatory statement – even if you didn’t know it was false.

One of my favorite ways to state my views without having to be so blunt about it is to quote someone who shares my perspective. I could call someone that I dislike or disapprove of an ass on my blog, but I think it’s more fun and effective to listen when others are talking about the issue and quote one of them when I hear them say “He’s a prick.”

If you want to learn more about your online dos and don’ts, check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can also connect with me via Twitter, Google+, Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Internet law, Legalities of Blogging Tagged With: arizona social media lawyer, blog defamation, Blog Law, Carter Law Firm, First Amendment, First Amendment attorney, Freedom of Speech, Internet Law, Internet lawyer, legal side of blogging, phoenix social media attorney, Ruth Carter, social media law, social media law blog, social media lawyer, TechPhx, Tyler Hurst

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