Asked and Answered

Brian D. Wassom is a partner in the firm of Honigman Miller Schwartz and Cohn, with five Michigan offices. With a practice that focuses on intellectual property and First Amendment litigation, Wassom helps media companies and journalists understand their rights. He also authors a blog discussing the law of social media at wassom.com. MATHIS: You have a full roster of speaking events lined up, all centered around the law of social media. Are you ever going to run out of topics? WASSOM: Not likely! For one thing, social media and related technologies are subjects that fascinate me, so I never tire of discussing them. I've always been a techie, sci-fi kind of guy, so it's a natural fit for me. And it doesn't seem likely that I'll ever run out of audiences either, because professionals across the spectrum are starting to realize that these technologies aren't a fad, and they're not going to go away. Instead, digital social media is the next evolution in how people communicate with each other, and that will have consequences both subtle and profound for how almost any type of business or other organization conducts itself going forward. MATHIS: How do you drive that point home to your audience? WASSOM: I usually remind my audiences of a few key facts. For example, most of the concepts behind what we now call "social media" are not new. Online chat rooms, bulletin boards, and messaging have existed for decades. It's just the spread of mobile devices and high-speed internet connections that brought those mechanics to a critical mass of people and allowed them to become ubiquitous. Also, we're now at the point in history where Generation Y (roughly defined as those between ages 16 and 35) outnumber the Baby Boomer generation. By some measures, up to 96% of Gen Y uses at least one form of social media. We need to accept as a given that these technologies will be part of everything we do from here on out. In addition, the technology itself--i.e., what we think of as "social media''--is developing so rapidly that there will always be something new to say about it. MATHIS: How do you define social media? WASSOM: It's hard to even give a simple definition of what "social media" even is anymore. Almost everything we do online has some social component to it anymore, from consumer reviews on Amazon to the chips in Nike shoes that can tell Facebook how far you just ran. One area that particularly excites me -- and about which I've written and spoken on a lot lately -- is a technology called "augmented reality," which involves superimposing digital data on our physical surroundings. (Picture the robot vision in "Terminator" or "Robocop," or the yellow line on an NFL broadcast.) Social media will be a primary way that people will begin to use this emerging technology. Imagine looking at someone through your video phone and seeing that person's Facebook profile floating in the air above their head. Or looking out in the distance to see markers floating above your friends' houses. Or letting you know when a compatible member of a dating website walks by. The possibilities are endless, and I have a lot of fun exploring them on my blog and with audiences. MATHIS: How are you involved in social media for your firm? WASSOM: Very involved, in at least a few different ways. First, I'm one member of a larger group of people exploring the various ways that our Firm can and should be involved in the social media space. There are hundreds of different options out there, and not each one is the right choice for every company. Because of the sensitive nature of our work, law firms in particular also need to be careful about what they do and say online. That said, however, there are a lot of exciting avenues for engaging our clients and sharing our knowledge through social media, and we have some innovative and forward-thinking people planning how we will do that. Second, I am one of the people within the firm who counsels clients when they run into legal issues in the social media space. As more business moves online, all of the same legal issues that happen in other spaces happen there, too. So we've seen people making defamatory and other damaging comments about clients; infringers using our clients' copyrights, trademarks, and other intellectual property on social media sites; and employees who say embarrassing things online, just to list a few examples. We understand these issues and help our clients deal with them. And we've helped several clients craft or improve the policies that govern what their employees can and can't (or should and shouldn't) do in social media. It never ceases to amaze me what people will say online, where anyone in the world can read it, that they wouldn't say in a newspaper or even in a crowded room. Social media sites do a good job at lowering our defenses and getting us to share, so people need to be reminded what boundaries they should observe in these forums. Third, I've spoken to attorneys both inside and outside our firm about how to use social media to their advantage. Some of our lawyers have great stories about how they used social media to locate a key witness, or discover a crucial fact that wasn't available anywhere else. I've personally used social media evidence in several contexts, such as to prove confusion in a trademark infringement case and to prove that a witness was lying. I hardly ever depose a witness anymore without looking them up online first. There's so much information out there, it makes no sense not to take advantage of it. MATHIS: Do employers also need to be reminded of what they shouldn't do with respect to their employees' social media posts? WASSOM: One of the hottest areas of social media-related litigation right now has to do with employees' rights to speak online, and when that speech involves "concerted activity" that is protected by federal labor laws. The National Labor Relations Board has made it a priority to enforce these rights, and it has already taken action against several employers. Likewise, schools have been vexed with litigation by students who were punished for something they did online. So the lines between permissible and impermissible conduct remain quite fuzzy. MATHIS: In what ways does Honigman benefit from your work in social media? WASSOM: Just about everything I do online benefits the firm either directly or indirectly. Certainly, the fact that I'm out there blogging and using this space in a professional capacity allows me to reach and engage with audiences that I wouldn't otherwise have access to. It opens up doors. I've gotten interviews (like this one!), speaking engagements, and even new clients as a result of conversations started in social media. As I mentioned above, social media also gives me new tools that I can use to do what I'm already doing better. Individually and collectively, these experiences raise both my profile and the firm's, as well as my ability to serve the firm's clients. MATHIS: How do you find time to engage in social media in your busy schedule? WASSOM: On a basic level, it's easy. It takes no time at all to check your Facebook profile or Twitter feed during a momentary break, or to click the "share this" button while reading something online. But when you're talking about a sustained, professional presence online, such as my blog or Twitter account, I won't lie: that takes a lot of work and dedication. Most blogs die out within a few months, after the newness wears off and the burden of consistently updating your content becomes a chore. I have to think of it as just another regular task, and manage my time accordingly. It's usually something I can do over the weekend, and there is great software that will automatically post your content for you at specified times. But you get out of it what you put into it. I took a lot of time to think it over and come up with reasonable goals before I started blogging, so I knew what I was getting into. Published: Thu, Nov 17, 2011

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