Tag: Social Media

Protection for Voice Actors is Artificial in Today’s Artificial Intelligence World

As we all know, social media has taken the world by storm. Unsurprisingly, it’s had an impact on trademark and copyright law, as the related right of publicity. A recent case involving an actor’s voice being used on the popular app TikTok is emblematic of the time. The actor, Bev Standing, sued TikTok for using her voice, simulated via artificial intelligence (AI) without her permission, to serve as “the female computer-generated voice of TikTok.” The case, which was settled last year, illustrates how the law is being adapted to protect artists’ rights in the face of exploitation through AI, as well as the limits of current law in protecting AI-created works.

Standing explained that she thinks of her voice “as a business,” and she is looking to protect her “product.” Apps like TikTok are taking these “products” and feeding them into an algorithm without the original speaker’s permission, thus impairing creative professionals’ ability to profit in an age of widespread use of the Internet and social media platforms.

Someone’s voice (and aspects of their persona such as their photo, image, or other likeness) can be protected by what’s called the “right of publicity.” That right prevents others from appropriation of one’s persona – but only when appropriation is for commercial purposes. In the TikTok case, there was commercial use, as TikTok was benefiting from use of Standing’s voice to “narrate” its users’ videos (with some user videos apparently involving “foul and offensive language”). In her Complaint, Standing alleged TikTok had violated her right of publicity in using her voice to create the AI voice used by TikTok, and relied upon two other claims:  false designation of origin under the Lanham Act and copyright infringement, as well as related state law claims. The false designation of origin claim turned on whether Standing’s voice was so recognizable that another party’s misappropriation of it could confuse consumers as to whether Standing authorized the Tik Tok use. The copyright infringement claim was possible because Standing created the original voice files for a company that hired her to record Chinese language translations. TikTok subsequently acquired the files but failed to get a license from Standing to use them, as TikTok was legally obligated to do because Standing was the original creator (and therefore copyright owner) of the voice files.

As with other historical technological innovations (one of the earliest being the printing press), the law often plays catch-up, but has proven surprisingly adaptable to new technology. Here, Standing was able to plead three legal theories (six if you count the state statutory and common law unfair competition claims), so it seems artists are well-protected by existing law, at least if they are alleging AI was used to copy their work or persona.

On the other hand, the case for protecting creative expression produced in whole or in part by AI is much more difficult. Some believe AI deserves its own form of copyright, since innovative technology has increasingly made its own music and sounds. Currently, protection for these sounds is limited, since only humans can be identified as authors for the purposes of copyright. Ryan Abott, a professor of law and health science at the University of Surrey in Britain, is attempting to bring a legal case against the U.S. Copyright Office to register a digital artwork made by a computer with AI as its author. The fear, says Abott, is that without rights over these sounds, innovation will be stifled — individuals will not have incentive to create AI works if they cannot protect them from unauthorized exploitation.

Article By Jeanne Hamburg of Norris McLaughlin P.A.

For more communications, media, and internet news,  click here to visit the National Law Review.

©2022 Norris McLaughlin P.A., All Rights Reserved

How to Create an Impactful and Authentic Pride Month Social Media Campaign for Your Company

June is Pride Month, which offers companies of all kinds a unique opportunity to celebrate, show support and raise awareness for LGBTQIA+ rights on their social media channels.

Businesses of all kinds and sizes can get involved, raise awareness and give back for Pride Month regardless of their budget or reach.

While Pride is most definitely a celebration, an impactful Pride campaign should include education, awareness, and center around people.

Celebrating Pride and showing your support for the LGBTQIA+ community is not a trend— and it shouldn’t be treated as such.

Here’s how to create and implement an impactful and genuine Pride Month social media campaign at your company.

The Do’s and Don’ts of Pride Month social media planning

Before you dive head-first into planning your corporate Pride initiatives, it’s important to get a wide range of employees involved in the planning process.

If your company has an LGBTQIA+ affinity group or diversity committee, collaborate with them or if you don’t have a group, consider convening a committee of employee volunteers of diverse backgrounds to serve as a sounding board and provide their input as your plans begin to take shape.

Please note: these volunteers should be compensated for their time and efforts in some meaningful way (vacation time, bonuses, gift cards, etc.). While it may be too late to do this for this year’s campaign, activate or assemble the group now for your 2023 initiative.

Don’t: Exploit social initiatives and conversations as a means to reach business goals.

Celebrating Pride and showing your support for the LGBTQIA+ community is not a trend— and it shouldn’t be treated as such.

If you’re simply posting rainbow-branded imagery (rainbow washing) during the month or posting about your commitment to the cause without having any real initiatives or actions to back it up, you’re just paying lip service to and perhaps exploiting yet another social initiative. Make sure your company can really walk the walk before you talk the talk. Performative allyship can backfire, alienating your employees, your clients, recruits, and others.

Remember that everyone (employees, clients, and the general public) is watching what you post online, even if they don’t actually like or comment on it.

Do: Ask yourself why you’re supporting this initiative and have a clear purpose.

Before publishing Pride-related content, ask yourself, are we actually adding value to this conversation? What are we hoping to gain from inserting ourselves into this conversation? What are our motivations? Is our company an actual safe space or inclusive environment that includes active and engaged allies?

Remember, Pride Month should not be about your business goals. You also don’t have to have accomplished all of your LGBTQIA+ related inclusion goals to commemorate Pride, but your efforts should be more than surface level.

Do: Support LGBTQIA+ initiatives year-round.

If you don’t already take steps to support the LGBTQIA+ community year-round, take the opportunity to discuss doing so with management and staff before Pride. June is only one month out of the year, a month where it’s arguably the “most acceptable” to show support for the LGBTQIA+ community. To be a true ally, it’s important to show this level of support year-round. Work to ensure that your company’s policies and practices are inclusive and address the needs of your LGBTQIA+ employees.

In addition to internally focused actions, consider how your true commitment can be reflected externally. There are many organizations to which you can donate and volunteer. Solicit voluntary feedback from your LGBTQIA+ employees and clients to ensure that they feel involved and included in the process.

Do: Educate yourself and those around you on the origins and history of Pride Month.

Pride Month has a rich, political history that companies often fail to understand and recognize as they participate in Pride Month. Pride Month is celebrated in June to honor the 1969 Stonewall Uprising in Manhattan — a tipping point for the Gay Liberation Movement in the United States.

Not only is Pride a time to recognize the progress that’s been made since the Stonewall Riots, but it’s just as important to acknowledge how far we still must go as a society, particularly considering recent efforts to overturn or narrow the progress that has been made. A successful Pride campaign should have education and awareness at its core.

Do: Make education and awareness the core of your campaign.

Ideas for content for your Pride Campaign can include educating your followers on the meaning behind the Pride flag, using posts to tell the history of the Pride flag, and what Pride means to your employees, and run their answers in Q&A posts.

Another idea is to create posts to help followers better understand Pride Month and provide resources to help people better educate themselves on the cause and support those of the LGBTQIA+ community.

In addition, spotlighting members of the LGBTQIA+ community is a helpful way to educate your followers and amplify the contributions of individuals.

No matter what you choose, create a campaign that is rooted in improving awareness and education amongst your community.

Do: Let inclusivity be at the core of your all campaigns.

Inclusivity should be an active mission as part of your Pride campaign, and for your future marketing efforts too. Aim to have better representation on social media for your community — that means including people of all marginalized or otherwise underrepresented voices.

If you really want to reach, represent, and support your diverse community, it’s time to make active shifts towards better inclusive marketing year-round. It’s less about what you need to do for Pride today and instead, how are you supporting LGBTQIA+ folks year-round?

Do: Put your money (and time) where your mouth is.

Instead of treating Pride like a marketing campaign, put your efforts toward an activity that will positively impact the LGBTQIA+ community.

While monetary donations can be helpful, volunteering at community events or spending time with LGBTQIA+ advocacy organizations can be more impactful for your employees.

Consider hosting or taking part in LGBTQIA+ programming and donating to local charities doing work in your community to support LGBTQIA+ initiatives.

Do: Use the right hashtags to be discovered

  • #lgbtqia
  • #lgbtqpride
  • #lgbtqhumanrights
  • #equality
  • #pridemonth
  • #loveislove
  • #pride

Every organization that wants to support Pride on social media can find a way to do so, we challenge you to do it in a way that is authentic, genuine, and impactful to your brand and most importantly, to your employees and your clients. The world is watching you, so challenge yourself by doing the right thing.

This article was authored by Stefanie Marrone of Stefanie Marrone Consulting, and Paula T. Edgar, Esq, the CEO of PGE Consulting Group LLC, a firm that provides training and education solutions at the intersection of professional development and diversity, equity and inclusion. 

For more legal marketing and law office management news, click here to visit the National Law Review.

Copyright © 2022, Stefanie M. Marrone. All Rights Reserved.

Trade Mark Infringement – Muslim Dating App Meets its Match [.com]

A recent Intellectual Property Enterprise Court Decision (IPEC) on 20 April 2022 has decided that ‘Muzmatch’, an online matchmaking service to the Muslim Community has infringed Match.com’s registered trade marks.

The decision by Nicholas Caddick Q.C was that Muzmatch’s use of signs and its name amounted to trade mark infringement and/or passing off of Match.com’s trade marks. This case follows successful oppositions by Match.com to Muzmatch’s registration of its marks in 2018, and unsuccessful attempts by Match.com to purchase Muzmatch between 2017 and 2019.

Match.com is one of the largest and most recognisable dating platforms in the UK. It first registered a word mark ‘MATCH.COM’ in 1996 and also owns other dating-related brands including Tinder and Hinge with other marks including the word mark ‘TINDER’. Match.com used a 2012 TNS report to illustrate its goodwill and reputation and 70% of people surveyed would be able to recall Match.com if prompted, 44% unprompted and 31% of people would name Match.com as the first dating brand off the ‘top of their head.’

Muzmatch is a comparatively niche but growing dating platform, which aims to provide a halal (i.e. in compliance with Islamic law) way for single Muslim men and women to meet a partner. Muzmatch is comparatively much smaller and was founded in 2011 by Mr Shahzad Younas and now has had around 666,069 sign-ups in the UK alone.

The Court considered that the marks ‘Muzmatch’ and ‘MATCH.COM’ and each company’s graphical marks, had a high degree of similarity in the services provided. The marks were also similar in nature orally and conceptually and the addition of the prefix ‘Muz’ did not distinguish the two marks, nor could the lack of the suffix ‘.com’ or stylistic fonts/devices.

The key issue of the case relates to the idea of the term ‘Match’ which is used by both marks to describe the nature of the business: match[ing]. Muzmatch argued that as both marks share this descriptive common element, so it is difficult to conclude that there is a likelihood of confusion between the two marks as the term just describes what each business does.

 The Court found that finding that there is a likelihood of confusion for a common descriptive element is not impossible, as the descriptive element can be used distinctively. The average consumer would conclude that the portion ‘Match’ is the badge of origin for Match.com due to its reputation as a brand and the very substantial degree of distinctiveness in the dating industry. An average consumer would have seen the word ‘Match’ as the dominant element in the Match.com trade marks and Match.com is often referred to as just ‘Match’ in advertisements.

Aside from its marks, Muzmatch utilised a Search Engine Optimisation strategy from January 2012 whereby it utilised a list of around 5000 keywords which would take a user to a landing page on the its website. In the list of the keywords used, Muzmatch used the words ‘muslim-tinder’, ‘tinder’ and ‘halal-tinder’ which were accepted by Muzmatch during the litigation to have infringed Match’s trade marks of the Tinder brand including the word mark ‘TINDER’. Muzmatch’s SEO use was also found to cause confusion based on some of its keywords including ‘UK Muslim Match’, which again uses the term Match distinctively, therefore a consumer may confuse a link to ‘UK Muslim Match’ with ‘Match.com’.

Therefore, the Court found that there was likely to be confusion between Muzmatch and Match.com because of the distinctive nature of the term ‘Match’ in the world of dating platforms.  An average consumer would conclude that Muzmatch was connected in a material way with the Match.com marks, as if it was targeted at Muslim users as a sub-brand, so this confusion would be trade mark infringement under S10(2) of the Trade Marks Act 1994.

The Court also considered that Muzmatch had taken unfair advantage of Match.com’s trade marks and had therefore infringed those marks under S10(3) of the Trade Marks Act 1994. This was due to the reputation of Match.com’s trade marks and because a consumer would believe that Muzmatch was a sub-brand of Match.com.

The Court rejected Muzmatch’s defence of honest concurrent use and found that Match.com would also have an alternative claim in the tort of passing off.

Key Points:

  • The Court found that a common descriptive element can acquire distinctiveness in an area, solely because of a company’s reputation and influence in that market.
  • The use of Search Engine Optimisation strategies can also constitute a trade mark infringement.
  • The lack of the suffix ‘.com’ in a mark is not sufficient to distinguish use from a household brand such as Match.com, so care should be taken with brands such as ‘Match.com’, ‘Booking.com’[1]

Source:

[1] Match Group, LLC, Meetic SAS, Match.Com International Limited v Muzmatch Limited, Shahzad Younas [2022] EWHC 941 (IPEC)

[1] Note- Blog Post of July 6 2020 Relating to Booking.com- https://www.iptechblog.com/2020/07/us-supreme-court-opens-doors-to-generic-com-trademarks/

Article By Connor Sargeant and the Intellectual Property and Technology Practice Group at Squire Patton Boggs (US) LLP ​.

For more intellectual property legal news, click here to visit the National Law Review.

© Copyright 2022 Squire Patton Boggs (US) LLP

A Lawyer’s Guide to Integrated Marketing

Like many lawyers, I did not learn about marketing in law school. I knew nothing about communications or media relations before law school, either. When I graduated and began practicing at a boutique matrimonial law firm, there was no internal or external marketing resource, and no direct conversations or plans about public relations or branding. One founding partner talked about the importance of reputation for connecting with potential clients and how his connections in the legal community resulted in many referrals, but he never mentioned marketing.

Yet, as I tagged along to bar association meetings, drafted articles that the partner published in a legal journal, and received encouragement to network at Inns of Court sessions, I saw this side of legal practice come to light. We didn’t call it marketing, or PR, and it was well before social media, but I understood that the partner was intentionally marketing the practice and generating awareness of the firm’s experience — an effort that resulted in new client engagements.

When I decided to leave law after a few years, I enrolled in a New York University course about marketing for professional services. As luck would have it, the instructor was Deborah Brightman Farone, an extraordinary legal marketer then and now — she was inducted into the Legal Marketing Association’s Hall of Fame at the organization’s 2022 annual conference. Deborah introduced me to the field of law firm marketing, and since then, I have worked with hundreds of lawyers and professional marketers on business development and integrated marketing plans, and have helped them make marketing part of their daily practice.

Most lawyers need to understand what this marketing thing is all about. I see firsthand their appreciation for the importance of building client relationships, cross-selling expertise within the firm, and networking. However, I don’t see an understanding of the terms and tactics of legal marketing as often. I think that with so much to learn in law school, there just isn’t time to learn the business side of law. Once a lawyer is practicing law, there may be little direction about how to reach prospects and referral sources, stand apart from other lawyers doing similar work, and find time to “market oneself.”

I frequently read articles where lawyers describe their routes to becoming partner or managing a practice or office. The words “PR” or “marketing” may not appear in their answers, but as someone who has advised lawyers about practice growth for more than 20 years, I know that positioning themselves as knowledge leaders played a role in the success of their relationship-building and practice development. And that, of course, is marketing.

This article will take you through five steps I always examine with lawyers who are just getting started with marketing, or participating in a firmwide marketing program.

  1. Acknowledge the Need for Education

Earning a JD and passing the bar exam prepare a lawyer for the practice of law, but not the business of law. My colleague Vivian Hood recently wrote, “Law schools focus on teaching the art of law, and not so much on the art of connections.” Courses about marketing, public relations, or social media are not part of the law school curriculum. Rather, law school teaches students to read cases and apply precedent, analyze facts and frame arguments, and spot the real issues and see the red herrings. Likewise, legal writing courses, moot court competitions, internships, and other hands-on work prepare them for practicing law. Their understanding of marketing may extend to billboards they see on their way to work, law firm ads in legal journals, or networking events with bar associations.

Lawyers know how to practice law, but do not know what marketing is or how it supports business development and revenue. Education is the first step to heightening awareness. On many occasions, I have explained how PR works so lawyers understand the events that result in being quoted in a trade publication, or the behind-the-scenes steps that go into earning a speaking engagement at an industry event.

  1. Discuss Perceptions of Marketing

The only way to know how an attorney perceives marketing is to ask, and then provide guidance about worthwhile and suitable marketing efforts.

Lawyers often shy away from marketing because they associate it with sales. My colleague Glennie Green explains, “Most attorneys envision some sort of sales when the idea of marketing and business development comes up. They see car salespeople, or aggressive pitches for timeshares. But that is the wrong mindset. Business development is not sales. Business development is cultivating and nurturing relationships.”

Relationships can be built in many ways. A common misconception is that marketing success is based on the ability to be a natural rainmaker who can walk into any room and instantly make connections for the firm. That belief can create unrealistic expectations and undue stress, because rainmakers are few and far between. Relationships can be built and nurtured without that unique rainmaker quality. Everyone adapts to situations differently ­— some of us are introverts, others extroverts, or a combination of traits.

  1. Assess the Impact of Previous Experiences

Lawyers may base their perceptions of marketing on prior experiences. Lawyers have told me, “I wrote many articles in the past, and they never amounted to any new business.”

“I traveled to speak at a conference, and not a single attendee turned out to be a new client.”

“I did an interview with a reporter who misquoted me.”

“I have a LinkedIn profile, but I’m not interested in doing anything with it; it’s just like Facebook.”

Many people fear failure, and many transactional lawyers and litigators are driven by winning. It is no surprise, then, that lawyers question the value of something that has not been a winner in the past. Understanding and acknowledging these hesitations can lead to productive discussions about marketing and, more specifically, about techniques that may be better suited for the lawyer.

  1. Discuss the Time Commitment

The billable-hour model of legal practice can affect a lawyer’s availability to market their practice. Too many business-driving commitments will inevitably frustrate a lawyer and diminish the success of marketing. It’s better to work with a distinct set of action items that can take only a few minutes a day rather than many hours each week.

Glennie Green has helped lawyers identify their advocates — assistants, paralegals, the firm’s librarians; people they can partner with to achieve their action items. One managing partner with a busy practice serves as an example of this effort. “He has made a commitment to conduct a certain number of meetings a month with current and potential referral sources,” she says. “He enlists a paralegal in the office to help schedule those meetings, as well as maintain his ‘marketing’ calendar. This allows him to keep his focus on his practice and manage the firm. He regularly checks his calendar for new appointments, and he says he looks forward to seeing whom he will meet with next. Once he realized that he didn’t have to do it all and enlisted some help, his plan and marketing goals became not only manageable but systematic.”

  1. Find the Comfort Zone

Marketing efforts must be tailored to a lawyer’s personality and interests. Everyone has a different comfort level. Some lawyers love to speak at conferences, and others would rather research a case and write an analysis for a journal. One lawyer may already enjoy engaging on social media, and another may feel crushed for time but would be amenable to doing a 30-minute interview with a reporter. Perhaps a lawyer may enjoy participating in an association’s events or committees. Green explains, “Knowing a lawyer’s areas of confidence, and recognizing what causes any discomfort, is crucial to establish the right marketing plan with the flexibility to change direction as needed.”

The avenues for marketing include website content and branding, social media posts and engagement, media relations, published quotes and articles, rankings submissions and awards, conferences and speaking opportunities, networking, events, and more. The questions and conversations I’ve provided lead to more precise choices of marketing tactics, as well as more informed expectations of results. An integrated marketing and business development program offers lawyers a selection of tactics, with deliberate matching to their preferences and the flexibility to change as needed.

Article By Liz Bard Lindley of Jaffe

For more business of law legal news, click here to visit the National Law Review.

© Copyright 2008-2022, Jaffe Associates

How Businesses Can Use LinkedIn Company Newsletters in Their Marketing Efforts

LinkedIn has added what I think is the most helpful tool in a long time for businesses to engage with and bring value to their followers – the ability for LinkedIn Company Pages to publish email newsletters right through LinkedIn.

This underscores the importance of having a company page and how it can be used as a content hub for marketing and recruiting your business.

Linked Company Page newsletters are available to businesses with more than 150 followers that actively maintain their LinkedIn presences.

You can create a LinkedIn Company Page newsletter in three simple steps:

  1. Create: Start writing an article on and select “Create a Newsletter.” Give it a title, add a header image (it prompts you with the dimensions) and cut and paste your text. You can add hyperlinks and images for each article too.
  2. Publish: When you publish your newsletter it will post to your feed and LinkedIn will notify your followers. They can opt in to receive email and in-platform notifications when you publish new content.
  3. Review performance: View the analytics of each newsletter sent out and see the number of subscribers. The number increases pretty quickly which is awesome. And it’s opt in so you don’t have to worry about GDPR rules.

There’s a lot of opportunity here because it is a new feature (for companies – it’s been available to individuals for a short time) and most companies don’t know about it yet (and certainly aren’t using it yet), so being an early adopter is to your benefit.

Even if you send out an email newsletter, you should still utilize the LinkedIn platform to send out a newsletter because you will reach a different audience and cast a wider net for your content.

In addition, people are opting into this newsletter, so it’s not building an audience from scratch, and if you haven’t ever sent out an email newsletter, this is a great way to start. If email marketing programs and CRM management tools overwhelm you, this is a great way to test out the waters.

It’s also really easy to repurpose content you already have. I would include hyperlinks to your website or blog with the full text (in order to keep the newsletter short and to drive traffic to your site).

You can embed links from YouTube into the newsletter to play. Check out my LinkedIn newsletter to see how it looks.

Here are some content ideas for what you can include in your LinkedIn Company Page Newsletter:

  • Article snippets with links to your latest blog posts or client alerts
  • Links to past webinars (provide a synopsis too)
  • Links to recent podcasts and videos (with shownotes)
  • Recent case studies
  • Q&As with your employees
  • Highlights of your community service/pro bono work
  • Announcements of your recent hires
  • Recent press coverage (this would be the only place where I would recommend including self-promotional items in the newsletter – the rest of it should be client-focused)
  • Upcoming events/webinars – this is a great way to promote them
  • Open jobs – why not promote them through this newsletter? It’s a competitive job market
  • News about your diversity and women’s initiatives programs – clients care a lot about this

Check out this new feature and let me know what you think of it. With nearly 800 million people on LinkedIn and the fact that your competitors are very likely not using it yet, it’s at least worth trying out.

Article By Stefanie M. Marrone of Stefanie Marrone Consulting

For more business of law thought leadership, click here to visit the National Law Review.

Copyright © 2022, Stefanie M. Marrone. All Rights Reserved.

Organizational Use of Social Media: Boon or Burden?

Organizational use of social media has evolved precipitously from the early days when social media was viewed as little more than a novel marketing concept on the fringe of broader traditional advertising campaigns.

However, with the increase in innovation comes concern over the extent to which increased organizational activities on social media may expose the organization to potential civil liability. Indeed, organizational use of social media has been described by some as a “virtual Pandora’s Box,” which is at once an exciting boon for business but filled to the brim with the potential for legal exposure.1 This article explores some of the most common insurance coverage issues organizations are likely to experience as their use of social media continues to expand and evolve. Although the article focuses on organizational issues, many of the principles described are equally applicable to coverage issues which may arise from an individual’s use of social media under consumer-focused policies.

As social media has become increasingly ingrained in the average consumer’s life, organizations and commercial entities have developed innovative ways to leverage their own social media presence as a marketing tool and as a means by which they can communicate directly with the consumer. For many organizations, this evolution means nothing more than using social media as an analogue to traditional advertising concepts, such as banner and sidebar ads, audio and video spots, product placement, and endorsement deals. For others, social media is at the core of the organization’s operations. Indeed, it is not uncommon for the world’s leading corporations to devote entire teams to the development and use of social media. Organizations running the gamut from national governments and major religious institutions, to startup social activist groups and mom-and-pop shops have found creative ways to use social media for endeavors ranging from disaster and emergency response, security at major events, breaking news coverage, broadscale organizational efforts, get out the word efforts, and customer service response centers.2

But as is all too often the case with innovation, the increase in organizational use of social media has been accompanied by litigation presenting novel legal questions on a variety of social media-related issues. And with the increase in litigation have come questions over the degree to which Commercial General Liability (“CGL”) insurance—the principles of which were developed decades before pioneering social media platforms such as MySpace and Friendster emerged—can keep up with ever evolving trends in the social media landscape. Fortunately, the legal theories under which social media-related lawsuits most typically arise are quite familiar. Libel, slander, copyright infringement, use of another’s advertising idea, and invasion of privacy all remain the stalwarts of the industry.3 Though courts throughout the nation have struggled at times to apply CGL’s pre-internet principles to modern day realities, traditional common law principles remain at the core of resolving these seemingly novel issues. Accordingly, and because courts have seemed inclined to require CGL carriers to provide coverage where the issues involved resemble otherwise traditional common law principles, organizations seeking to navigate the ever-evolving scope and substance of social-media related claims must keep traditional common law concepts in mind.

As a preliminary matter, social media comes with certain fundamental characteristics about which organizations must remain cognizant when developing their social media strategies. Indeed, the very feature of social media to which organizations are drawn most—the potential for cheap and instant access to 73% of the country4—necessarily implies that when a potentially problematic tweet or post catches steam, it stands to be shared far and wide and memorialized for all to see. Given the inherently “viral” nature of social media, plaintiffs are often well positioned to establish special damages by virtue of the far-reaching consequences of social media exposure alone. This is particularly problematic in libel-based defamation claims, which require proof of special damages as an element of the claim.5 Predictably, lawsuits alleging libel have grown in popularity as organizational use of social media has evolved,6 and given the wide array of theories under which such claims have been successful, they are perhaps the most problematic.7 Indeed, libel claims arising from organizational use of social media have become so common that that the phrase “Twibel”—a portmanteau of “Twitter” and “libel”—has emerged as a new favorite in the legal lexicon.

But claims arising from organizational use of social media are not limited to defamation alone. In jurisdictions that recognize the tort of invasion of privacy, courts have required CGL carriers to provide coverage in causes of action resulting from an insured’s role in the release of a third-party’s confidential information online.8 However, where the invasion of privacy has resulted from intentional conduct on the part of a third-party—such as a data breach—courts are divided on the issue of whether any potential negligence on the part of the insured satisfies the “publication” requirement of the invasion of privacy claim.9

Courts have also found that CGL coverage for so-called “advertising ideas” extends to social media-related claims.10 While these issues commonly resemble traditional trademark and trade dress infringement claims,11 some courts have interpreted Coverage B to encompass claims arising from organizations’ alleged infringement on another’s advertising strategy more broadly.12 Further, courts have used advertising ideas coverage to address publicity rights cases13 and, under certain circumstances, to encompass claims arising from patents related to internet and website functionality.14 Claims alleging intellectual property infringement have also commonly been held to apply to social media conduct under Coverage B’s express coverage for copyright, trade dress, and slogan infringement.15 Such claims are particularly likely to arise where an organization adopts content created by its social media followers without permission to do so.16

Importantly, recent revisions to CGL forms expressly contemplate certain social media conduct as “advertisement” for the purpose of coverage arising from advertising idea and infringement-related claims. Because these forms often set forth specific definitions of what constitutes an advertisement in the context of social media, organizations must pay close attention to what types of social media activity are and are not covered when developing their social media strategies.17

One interesting evolution in advertising in which such definitions have played an important role is the advent of an “influencer” industry, which has raised novel questions as to the degree to which a paid influencer’s representations of a product or infringement upon another’s intellectual property may constitute an advertisement for Coverage B purposes.18

Finally, it is worth noting that while Coverage B has been interpreted to cover a broad variety of claims arising from an organization’s use of social media, evolutions in policy exclusions and coverage limits may in some cases defeat coverage for social media-related claims.19 In particular, exclusions applicable to prior publication, intellectual property, media and internet, electronic chatrooms and bulletin boards, and unauthorized use of another’s name exclusions all stand to be implicated. However, because exclusions vary from policy to policy and are ever-evolving, a detailed examination of their potential broad applicability to social media-related claims generally is outside the scope of this article.

As this article demonstrates, organizational use of social media has emerged as a lucrative means by which organizations can market themselves and connect individually with their market base. However, as the means by which organizations use social media continues to evolve, so too have the legal theories under which social media-related claims are raised. However, with careful planning and an eye toward trends in the industry and the availability of increasingly diverse coverage options, organizations can make the most of the social media boon without falling prey to its potential pitfalls.

  1. Susan Evans Jennings, Justin R. Blount, & M. Gail Weatherly, Social Media—A Virtual Pandora’s Box: Prevalence, Possible  Legal Liabilities, and Policies, 77(1) Business & Professional Communication Quarterly, 96 (2014).

  2. See generally Matteo Tonello, Corporate Use of Social Media, Harvard Law School Forum on Corporate Governance, May 17, 2016.

  3. Although outside the scope of this article, organizational use of social media can under certain circumstances implicate federal regulatory issues. See Lord & Taylor Settles FTC Charges It Deceived Consumers Through Paid Article in an Online Fashion Magazine and Paid Instagram Posts by 50 “Fashion Influencers”, Federal Trade Commission (Mar. 15, 2016) https://www.ftc. gov/news-events/press-releases/2016/03/lord-taylor-settles-ftc-charges-it-deceived-consumers-through.

  4. See Social Media Fact Sheet, Pew Research, https://www.pewresearch.org/internet/fact-sheet/social-media/.

  5. See Restatement (Second) of Torts § 558 (describing the elements of defamation as “(1) a false factual statement concerning the plaintiff (2) published to a third-party (3) that is made either negligently or with malice, and (4) results in special damages”).

  6. See Raymond Placid, Judy Wynekoop, & Roger W. Feicht, Twibel: The Intersection of Twitter & Libel, 90 Fl. Bar J. 8, 32 (Sep./ Oct. 2016).

  7. See, e.g., AIX Specialty Ins. Co. v. Big Limo, Inc., Case No. 3:21-cv-08, 2021 WL 2708902, at *4–5 (S.D. Ohio July 1, 2021) (holding that an insurer had a duty to defend its insured nightclub under a theory of defamation where the nightclub had allegedly used a model’s picture in a Facebook post to promote a cabaret); Jar Labs. v. Great Am. E&S Ins. Co., 945 F. Supp. 2d 937 (N.D. Ill. 2013) (holding that an insurer had a duty to defend its insured under a theory of implied disparagement where the insured had published a Facebook post implicitly representing a competitor’s products in a false and misleading way).

  8. See State Farm Gen Ins. Co. v. JR’s Frames, Inc., 181 Cal. App. 4th 429, 448 (2010); Travelers Indem. Co. of Am. v. Portal Healthcare Sols., LLC, 644 F. App’x 245 (4th Cir. (Va.) 2016).

  9. See, e.g., St. Paul Fire & Marine Ins. Co. v. Rosen Millennium, Inc., 2018 WL 4732718, at *3 (M.D. Fla. Sept. 28, 2018); Innovak Int’l v. Hanover Ins. Co., 280 F. Supp. 3d 1340 (M.D. Fla. 2017); Zurich Am. Ins. Co. v. Sony Corp. of Am., 2014 WL 8382554 (N.Y. Sup. Ct. Feb. 21, 2014) (denying claims for invasion of privacy where the publication at issue arose from intentional third-party conduct); but see Landry’s Inc. v. Ins. Co. of the State of Penn., 4 4th 366, 270 (5th Cir. (Tex.) 2021) (requiring an insurer to defend against publication of personally identifiable information resulting from a data breach).

  10. See Atlantic Mut. Ins. Co. v. Badger Medical Supply Co., 528 N.W.2d 486, 490 (Wis. App. 1995) (defining “advertising idea” as “an idea for calling public attention to a product or business, especially by proclaiming desirable qualities so as to increase sales or patronage”).

  11. See Cat Internet Servs., Inc. v. Providence Washington Ins. Co., 333 F.3d 138, 142 (3rd Cir. (Penn.) 2003).

  12. See Great American Inc. Co. v. Beyond Gravity Media, Inc., Case No. 3:20-cv-53, 2021 WL 4192738 (S.D. Tex. Sept. 15, 2021) (finding that an insured’s use of the claimant’s martial arts-themed advertising strategy was subject to CGL coverage); See also Native Am. Arts, Inc. v. Hartford Cas. Ins. Co., 435 F.3d 729 (7th Cir. 2006); Gustafson v. Am. Family Mut. Ins. Co., 901 F. Supp. 2d 1289 (D. Colo. 2012).

  13. See Air Eng., Inc. v. Industrial Air Power, LLC, 828 N.W.2d 565 (Wis. App. 2013); Hyundai Motor Am. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., 600 F.3d 1092 (9th Cir. (Cal.) 2010); but see Holyoke Mut’l Ins. Co. in Salem v. Vibram USA Inc., 106 N.E.3d 572 (Mass. 2018) (rejecting claim that Coverage B provides coverage for traditional patent infringement claim).

  14. See Gencor Indus, Inc. v. Wausau Underwriters Ins. Co., 857 F. Supp. 1560 (M.D. Fla. 1994).

  15. See generally Daniel I. Graham Jr. & Thomas W. Arvanitis, Social Media Risks & “Personal & Advertising Injury” Coverage Issues, DRI Insurance Coverage & Practice Symposium, December 9–10, 2021. A special thanks to the authors for their extensive research, from which this article benefits considerably.

  16. See Stross v. Redfin Corp., 730 Fed. App’x 198 (5th Cir. 2018).

  17. See Graham & Arvanitis, supra, at 10–11.

  18. Michael B. Rush, Social Media Advertising Under CGL Coverage B, The National Law Review, May 21, 2019.

  19. See Graham & Arvanitis, supra, at 11.

This article was written by Christopher S. Etheredge of Steptoe & Johnson law firm. For more articles about social media use, please click here.

New Poll Underscores Growing Support for National Data Privacy Legislation

Over half of all Americans would support a federal data privacy law, according to a recent poll from Politico and Morning Consult. The poll found that 56 percent of registered voters would either strongly or somewhat support a proposal to “make it illegal for social media companies to use personal data to recommend content via algorithms.” Democrats were most likely to support the proposal at 62 percent, compared to 54 percent of Republicans and 50 percent of Independents. Still, the numbers may show that bipartisan action is possible.

The poll is indicative of American’s increasing data privacy awareness and concerns. Colorado, Virginia, and California all passed or updated data privacy laws within the last year, and nearly every state is considering similar legislation. Additionally, Congress held several high-profile hearings last year soliciting testimony from several tech industry leaders and whistleblower Frances Haugen. In the private sector, Meta CEO Mark Zuckerberg has come out in favor of a national data privacy standard similar to the EU’s General Data Protection Regulation (GDPR).

Politico and Morning Consult released the poll results days after Senator Ron Wyden (D-OR) accepted a 24,000-signature petition calling for Congress to pass a federal data protection law. Senator Wyden, who recently introduced his own data privacy proposal called the “Mind Your Own Business Act,” said it was “past time” for Congress to act.

He may be right: U.S./EU data flows have been on borrowed time since 2020. The GDPR prohibits data flows from the EU to countries with inadequate data protection laws, including the United States. The U.S. Privacy Shield regulations allowed the United States to circumvent the rule, but an EU court invalidated the agreement in 2020, and data flows between the US and the EU have been in legal limbo ever since. Eventually, Congress and the EU will need to address the situation and a federal data protection law would be a long-term solution.

This post was authored by C. Blair Robinson, legal intern at Robinson+Cole. Blair is not yet admitted to practice law. Click here to read more about the Data Privacy and Cybersecurity practice at Robinson & Cole LLP.

For more data privacy and cybersecurity news, click here to visit the National Law Review.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.

Social Media, Content Management & Networking with Stefanie Marrone [PODCAST]

The pandemic forced the legal industry to rely on social media. So, where do you start? Rachel and Jessica discuss the best practices with Stefanie Marrone, Founder and CEO of Stefanie Marrone Consulting/The Social Media Butterfly. Be sure to also check out her “Women Who Wow” series.

Read on below for a transcript of our conversation, transcribed by AI:

Rachel

In this episode, we’re excited to talk to Stefanie Marrone, founder and CEO of Stephanie Marrone Consulting and the Social Media Butterfly. Stefanie, would you like to introduce yourself to our listeners?

Stefanie

Yeah, sure. Thanks, guys for having me on. I’m Stephanie Marrone. I have worked with law firms and at law firms for over 20 years . And then about two years ago, I went and started my own business where I’m a consultant to law firms and other companies in the legal industry. And I help them with everything under the sun marketing related and then also with a focus on social media. And I live in New York with my two French bulldog puppies, who will definitely make an appearance today, as I warned you guys before we started recording.

Rachel

Great, we’re excited to get more of your insights here on social media and content creation. So one of the main topics that we want to focus on today, and it’s been sort of a through line in our whole first season here is sort of trends in the legal industry and adjusting to COVID-19. So I was wondering if you could start off by talking a little bit about the trends you’re currently seeing in the legal market today.

Stefanie

What they’re talking about the entire world right now is  the great resignation. There are lots of people leaving their jobs and going to work other places where there is more flexibility, where there’s more work life balance, and that has created a huge problem for law firms of every single size. So I guess it’s a lot of different things, right, the industry was forced to innovate as a result of COVID. They were innovating when it came to how they did business with their clients, and technology became front and center. The work was sort of stagnant for a little bit, and people are nervous to hire, but now they’re back in full swing. And they’re having a lot of trouble. I’m actually working with a number of law firms on recruiting marketing strategies, for the first time in a very long time. Again, because it’s a candidates market, there’s so much content out there. But then they saw it as an opportunity later on. Any lawyer who said I’m just going to take my clients to golf or go out to dinner, or you’re still going to have trouble doing that, because a lot of people are not ready. It’s basically we’re in a new frontier we are talking about the last two years have been like pivoting every single thing you thought you knew and that you were doing, you had to like make a sharp, right, and then a sharp left right afterward, and you went off the grid because the GPS didn’t even have those roads on the map. Right. So it’s been a crazy time over the last 18 months and firms that don’t get it are behind the times. Any firm is requiring you to go back to the office every day is going to have a really tough time getting their people to be excited about working.

Rachel

Right. And yeah, I think one of the interesting things that we’ve heard so far in doing these interviews is the COVID-19 pandemic was like a catalyst to get law firms to change and do a lot of the things that people probably wanted for a really long time, specifically remote work, probably a better work life balance, things like that. You mentioned briefly like working with law firms to come up with sort of recruiting marketing. What does that look like? Like how are firms trying to differentiate themselves and really stand out compared to others right now.

Stefanie

My very first job in legal marketing was working at always Rifkind, Wharton and Garrison and my job was to start their alumni relations program and to help them with recruiting marketing, one of the programs we did was to interview lawyers and find out why we’re getting a candidate in the door, but we’re not closing the deal, or they’re choosing another firm. And what we found was it was a lot of things, it was behavioral issues in terms of interviewing, it was making the candidates feel important. It was the way they were selling the firm, so to speak, you know, communicating what it’s like to work here, full circle. 20 years later. Now I’m getting asked by law firms to help them do exactly what I did 20 years ago, which was to help them tell the story of their firm why of recruits to join the firm, how to promote their wins without sounding too boastful, which is something I tell people all the time you know, you don’t want to put all of your awards everywhere. Candidates don’t care about that. They don’t care about the work. They care about the mentoring, they care about the work life balance, and not everybody wants to make partner anymore. The other one is millennials, I learned so much from millennials. Because I, I grew up in a different generation and their needs and wants are different. So one of the things I’m doing is looking at the materials on the website crafting language that speaks to recruits directly instead of legalese. One of the things I’m working on is like a Glassdoor strategy for one firm, where, you know, we’re saying that listen, employees now have a voice, you can’t just treat everyone poorly and expect that no one’s gonna find out about it, we have checks and balances now, and people are more empowered than they’ve ever been before. So making sure you know, your Glassdoor is okay. And that, you know, it’s not just Glassdoor, there’s obviously Indeed there’s Chambers and there’s other places, but making sure that you’re putting your best foot forward everywhere, and that you’re thinking strategically about how to market yourself to these different audiences. And so I hope that helps, but it’s not enough to have that great name on the door anymore. If people know you to not be a great place to work or not have a great culture, you’re going to have to work harder to get those people to either want to come work for you or stay. Because a lot of firms are losing a lot of their lawyers right now, in this great resignation time and they’re going to where the grass is greener. The firms have to actually spend time retaining their talent. And that’s another thing that I work on in terms of helping them come up with strategies for development for associates and development for other people who may be in danger of leaving. It’s a whole new world, guys.

Rachel

Right. And I think that’s really interesting. You bring up sites like Glassdoor, and Indeed because, like, if you are in the job market, you’re looking to apply a place that already has terrible reviews, that’s people getting turned away before they even apply.

Stefanie

Gone are the days when all that was out there was what the what the firm was saying about themselves or the organization. But now, you have to actually stand by what you say you are, you have to be that kind of place. People only write reviews when they’re really, really happy or really, really, really angry. I work on our alumni relations programs, which is like that full lifecycle of an associate from the time, you know, from recruiting to the time they’re there to then they leave. And so many law firms don’t have a very strong alumni relations program, or they don’t think about it, even people who they’ve  let go or ask to find another job, it doesn’t always work out, it’s okay. But don’t exclude them from the Alumni Program, include them, you want them to be part of the community, you never know who’s going to be a potential recruit of client return to you or bad mouth you out there. So you know, we want to leave people with a feeling of respect even when it doesn’t work out.

Rachel

Right. And that sort of plays into what I want to ask next is sort of like that overarching idea of a firm’s marketing efforts, like their branding, things like that, and how that’s been sort of impacted by COVID 19. So how can attorneys and firms really keep up with their marketing during this time? Like, how can they launch like these, you know, efforts to build their alumni relations and things like that?

Stefanie

Yeah, so one of the things I was seeing in the beginning when COVID had just hit was every firm was doing the exact same thing. They launched a Coronavirus Resource Center, I think I actually counted, it was like 30, something law firms had the exact same name for their resource section. And most of them were using the same stock images. It was that, you know, red and black photo of the COVID cell structure. And they would put that on their website, and then all their materials. And all that did was scare the crap out of everybody. Right? So and you see that same image online as well. So I was just say, I was saying to firms, like, differentiate yourself, be different. Be pivot, be understanding, be empathetic to your clients, and your recruits. And anybody who’s out there, let’s not rely on email. I don’t know about you guys. But I never used Zoom before COVID and I grew up in a law firm environment. And tech was not necessarily always like yet the front and center. So it required us to all adapt and innovate. And there were a lot of people who fought it tooth and nail, but still did it. So I guess my  thought was that COVID change everything. It forced us to be more human. I think we shed a lot of the formalities. I think we needed to innovate, we were forced to do it. I think the firms that are still putting out content without thinking that habits have changed. We’re on our mobile devices more, and law firms have to pivot to that. If you’re not using LinkedIn, you’re way behind the times and you need to use it now. So social is such a big part of your strategy as a lawyer and then also as a firm. One thing that happened a lot During COVID, where people were doing webinars, and they realized that they didn’t necessarily have to give CLE credit or be accredited to do it, the people just wanted to get together and learn about different issues. So I see firms doing that, and I’m so happy they’re doing it, but I don’t see them maximizing their webinars. So they’ll do a webinar one, they won’t take the recording from the webinar, and then have that transcribed and then it becomes a client alert, or, you know, an article that they can place in a third party publication. They don’t use it for social media posts. It’s what I call one and done and they it just goes into like, disappears into thin air. So I guess I still see law firms need help in terms of maximizing their content assets and using them more efficiently and more effectively.

And I think, you know, it’s sort of like work smarter, not harder. Why not repurpose it, you know, make your content work harder and smarter for you is something I literally say once a day.

Jess

Yeah, so you sort of touched upon just how much COVID has changed everything. And you spoke a little bit about webinars, and that was a way for people to sort of stay connected. Are there any other ways that attorneys and law firms in general can build their brands of business as well?  Social distancing is still on people’s minds.

Stefanie

LinkedIn is so important. I think for the majority of lawyers and law firms, it’s going to be LinkedIn where 750 plus million people gather for Business Networking and Information. So if you’re not on LinkedIn, you should get on LinkedIn, you should build a strong profile. The profile should have keywords that describe what you do, how you do, and for whom you do it. So I say there are three building blocks of LinkedIn. One is your profile. So get that completely done and optimize the bio, don’t put like Mr. Smith is, blah, blah, blah, and don’t brag about all your awards. Number two are your connections, a lot of people just sit and wait for people to come to them and connect with them. And it’s a two way street. So you should be actively thinking about who you know, from different walks of life from your path, the more people in your network, the stronger your network will be for when you want to do number three, which is post content. And that’s where I find most lawyers fall short, they don’t know what to do or how to do it. And it makes a huge difference. There’s only 1% of people globally using LinkedIn who actively create content. So there’s a huge opportunity. And lawyers aren’t, in my opinion taking advantage of it, or when they do they sound just like everybody else. So I want to encourage them to do more of that. And if they don’t know what to share, they could go to their company page and share from there, there are a lot of lawyers in the world to anything you can do to remain top of mind with touch points that are useful, that are authentic, and that are, you know, meaningful is important. So that’s why content helps. So I tell people all the time, you know, they’ll ask me, you know, how do I get better ranked in Google? And how do I build my brand? Start writing. You guys know this because of what you guys do. But most people don’t follow your blog, you have to push out the content to people, most people don’t follow your client alerts. This is why we have social media, email marketing, content, syndicators, like what you guys do, and a whole host of other tools that most lawyers don’t realize, like what’s going on behind the scenes. So you can write a great piece of content. But if you don’t promote it effectively and efficiently, it doesn’t matter, no one will see it. You know, if you’re thinking about going back to quote unquote, normal, you’re thinking about it all wrong. Firms, like get that and use content and use webinars. And then, of course, meet with your clients in person. There’s no substitution for that. But this world is not going back to the way it was we will be using social we will be using content marketing more. And I hope that lawyers realize that and firms realize it and then firms do more to promote those things and encourage their people to do those things.

Jess

So you’ve got all this experience in the legal industry, so many years trying to get people all the tools they need with social media content. Can you tell me about Women Who Wow, and why you started that?

Stefanie

So Women Who Wow is a group that I started, it’s actually just supposed to be for women’s history month in March 2020. And I started it before the pandemic and then the pandemic happened, I kept getting recommendations for other women and the series took on a life of its own and so, Women Who Wow became an ongoing series featuring women mostly in the legal industry, giving their ideas and their thoughts and advice on their careers and how they’ve gotten to where they are advice that they would give their younger selves. You know, I really felt like there was a void in the industry for something like this. I thought we needed something where women could spotlighted and celebrated without expecting anything in return. I have over 100 people so far profiled, and it keeps going. And then that sort of started, you know, from the series, then we created events, and they’re all free. And they are various events, learning from women. So it’s various different advice from career advice, to even just kind of finding more balance in your life. And everyone and anyone is welcome. And so it’s been great to build community at a time when I felt so isolated. I think no matter where you are in your career, there’s something for you. It’s just a great way to network. I love this series. And it’s meant a lot to me to find community and to support other women.

Jess

And I think that’s so great, because the legal industry on its head seems to be more maybe male dominated as an industry. So bringing women together for different professional topics, I think could be really beneficial. Is that similar to why you started it? Like kind of your thinking behind it?

Stefanie

Yeah, absolutely. So when you work at a law firm, there’s a lot of class differentials, right. There’s staff, people like me, the marketing person, and then there’s the attorneys. And very often there are benefits given to the attorneys that aren’t necessarily always given to the staff, and there still is a hierarchy at law firms. I also know that there’s a lot of disparity between women in law making partner than men, it is harder for women to make law of make partner from the day they step into the door of a law firm, they are automatically at a disadvantage. And research backs me up. I spoke on a panel on this recently. And essentially, it’s for a number of reasons. They’re not part of the old boys club, there are more men, and it is harder for women to adjust it to balance everything because the sometimes very often the onus of childcare and all that stuff, falls on women. And so they wind up leaving, they don’t make partner they go and they go in house to go to smaller firms, or they leave the industry entirely completely sort of like discouraged by what happened. And so, yes, and my idea was that women can learn so much from each other. So in terms of like talking about, you know, how you find balance, or how you’ve made it work, or to not be so hard on yourself, or what are your success tips. That is what I wanted people to be able to share with each other.

Jess

And I think that was perfect timing on your part, building a community like that, when that pandemic started, we were already feeling very isolated. And then, you know, I’m sure there are, you know, just like women and other groups of people probably always have that sense of slight isolation in like an industry that they work in. So I like that that’s, you know, why brought them together and showcased a lot of people who have knowledge to share, what would you say to people who maybe don’t have that support, or would like that same support?

Stefanie

So I would say build a community, right? So I was missing it, I needed it, I created it. And I wanted to learn from these women. Join the Women Who Wow, it’s open to everybody. It’s free. Like I said, and I would say, you know, if you’re at a firm, surround yourself with people, either in person or online, who are supporters and your cheerleaders and find a mentor, and sometimes it’s not organic, sometimes you need to go actively find one. Sometimes it’s not just one mentor. Sometimes it’s multiple people who provide advice to you in different areas, but they’re people love to give advice. They love to be asked of like, what would you do in this situation? Or tell me about your career? I think a lot of people are afraid to ask for things, ask for advice, ask for help. Don’t be afraid to admit that maybe there are some times where you get in your own way or you need help. And I think I would just say we are all works in progress, and we need to be just a little kinder to ourselves, too.

Rachel

That’s a really great sort of segue into our next topic, which is social media and content strategy. We spoke a little bit about LinkedIn. And we definitely think you know, lawyers should be on that platform. How can lawyers really use LinkedIn to their benefit?

Stefanie

I went over the three fundamentals before in terms of profile connections and then utilization of the platform, which is where most people fall flat. The other thing I see people do is promote themselves on social. I’m seeing all these Super Lawyers rankings being posted. And they literally start the same way. I’m honored to be ranked, or I’m humbled to be ranked, or even worse, I’m honored and humbled to be ranked. It doesn’t make you sound honored or humbled when you write it like that. And so I tell people think about it differently. Tell a story. Why did you become a lawyer? Why did you join your firm? Who helped you on these matters? How did you get to where you are, flip it around, thank your clients, thank the team that was in the office making those copies that got that deal done. It’s all about being humble. People like to celebrate your successes, but they don’t want you to sound like you’re patting yourself too hard on the back. So it’s just telling a story. And I tell people show versus tell with everything. One of my other big pet peeves is if I write an article, or I have a client alert, the lawyers will often publish it or share it without any introductory text. And that is like the worst thing you can do on social because you’re basically letting other people try to figure it out. And it doesn’t rank well with your SEO which LinkedIn has SEO too, by the way. So I tell people write a synopsis. In the beginning, tell people why you wrote this, why it’s interesting. And, you know, I’m sure you guys understand this. But so many lawyers don’t necessarily get to the point right off the bat or in the first couple lines. And that is key on LinkedIn. Because what LinkedIn does in the newsfeed is only show you the first two or three lines of a post. So if you don’t capture anyone’s attention in that time period, they’re going to keep moving along the scroll. And so the whole goal of social is to stop the scroll. And if you don’t have good content, and you don’t have good imagery, they’ll keep scrolling. And I guess the other thing I would say is most lawyers don’t think about LinkedIn, they think I don’t have time for it, I don’t need it. I’m good at what I do I have business. Well, here’s the thing, your business could dry up tomorrow, your competitors are on LinkedIn, I tell people all the time, you know, do it because you see other people do it because you want to be part of it, and it is effective for them. The other thing is that you can use it for business development. So I call this low hanging fruit. But it’s the sections on LinkedIn, where was the notification section, it tells me about people’s birthdays, which sounds trivial, but actually, it’s a touch point to get back in touch with someone and can open up a dialog. I’ve seen this time and time again. So birthdays, work anniversaries and new jobs. People don’t usually send emails anymore, when they get a new job, it’s up to you to do the due diligence to find out where they’ve gone. And that’s a great reason to guys, today, I got three notifications just today on people getting new jobs. So I would send a congratulatory note. And LinkedIn makes it so easy, you just have to hit a button, right. So these are touch points that enable you to get back in the realm of thinking with certain people. And I think it’s I’ve seen it lead to new business. And I’ve seen people bring in business, I love my personal business comes from my presence on LinkedIn, helping others without the expectation of anything in return, posting content, and learning the tools, the algorithm of LinkedIn, how to use hashtags effectively, when to post and all of those things. So if a lawyer doesn’t think it’s worth their while, I can show them five examples of how it could be worth their while. And it’s certainly not the only thing they should be doing. Just like they shouldn’t be relying on spreading articles or taking their clients for a golf game. It’s part of the overall multi disciplinary marketing strategy today have a lawyer and a law firm that is necessary to build your brand and your business.

Rachel

Right. And that sort of ties into another thing I was hoping to sort of get your thoughts on. We’ve spoken about LinkedIn, but Twitter and Facebook are also pretty big social media platforms, how can lawyers and firms use those platforms more effectively?

Stefanie

Lawyers have a lot of trouble with Twitter, and Facebook and Instagram. And it’s not easy to build your brand on any of these platforms. A lot of us post our personal stuff on Facebook, and if there’s a way that you can tie personal and professional together, do it. If you worked on a real estate deal, take a picture of the building and say, you know, I’m so proud to live in this city or to have worked on this deal means a lot I’ve walked by this building a million times Never did I think I would actually work on this. So I always tell people be alert that everybody and anybody can be a potential client or source of new business for employees. So on Facebook, I would say just don’t sound boastful. It’s not the place to post Super Lawyers. I don’t think you should ever post that stuff personally, but but other people would disagree with me. And then on Twitter, so Twitter moves a mile a minute. To be successful on Twitter, you need to post multiple times a day. And if you’re not going to do that, then don’t bother. But you could use Twitter as a news aggregator which I see a lot of people will do so follow the accounts of your competitor law firms. Follow  other lawyers and use ideas that you get from what they’re writing.

To inspire you follow industry publications as well, trade show conferences that are happening, obviously, the major news outlets because news is broken on Twitter, I get a lot of my news from just scrolling on Twitter, the lawyers can use it that way. Lawyers can also use Twitter to build relationships with reporters, and congratulate them on things they’ve written and retweet them and stay in touch with them. I recommend you have two Instagram profiles, one personal that is private, and one Instagram that is for work. You will not be successful on Instagram if you don’t understand how to use the different types of content, and hashtags. That’s it. So there’s reels and IGTV and regular posts and stories. If you don’t know what this means, you should not post it. I would tell law firms and lawyers to claim your name so at least you have the domain but don’t post in places also where your clients aren’t. Go where your clients are. You don’t have to be on TikTok, please actually don’t go on TikTok, if you’re a lawyer, in my opinion.  You don’t need to be on every platform, go where your clients are focused first. And you have to alter the message for the medium. You can’t post the same image on Instagram, you have to make it a square and you have to change the text and you have to use the app side differently. And if this doesn’t make sense to you, that means you are not ready to do that. It’s a jungle.  I would tell you to just go where your clients are. And don’t feel pressured to be on every platform.

Rachel

Yeah, one of the other sort of overarching themes of our podcast season is like just like there’s no one size fits all solution, you have to be adaptable. And remember, the word of the entire 18 months is pivot, right? You have to pivot, sort of like rounding out a discussion on social media, what strategies have really been your tried and true?

Stefanie

Yeah, so here’s the thing, I never thought I would start my own business and you never know where your life is going to go. And I always worked in house at law firms, and I was always posting on social. Build your brand long before you ever think you need it. I was able to do consulting with law firms very easily because I had the presence on social. My advice is to start using social to post even if you feel like oh, no one cares what I have to say. Why not you? Yes, they do. Certain people will. You won’t be everyone’s cup of tea. And I’ll say, you know, the more successful you get at it, the more naysayers you have/ I talk about Mean Girls quite a bit in the Women Who Wow program because we come across those at all stages of our lives, we just forget about them.  When people are like that, it’s usually because something in you brings out something in them that makes them feel inadequate or insecure, or they’re jealous about something. So keep going. There’s no easy way to download every single LinkedIn post you’ve ever written, especially since like the dawn of time, you can download your articles, so like the long form ones, and you can download your contacts, but you can’t do it with the posts. And so I keep an Excel spreadsheet of all of my posts, and I reuse that. So don’t reinvent the wheel every time – you can reuse your content.

No one remembers, there’s no way to spam anybody on LinkedIn. And even if they saw it, it’s reinforcement then. So that’s been another key to my success. And then the other one is helping others. It’s propping up others. It’s promoting others. It’s when I see somebody doing something great promoting and mentioning them on social. So for every three posts I do about something of mine, I’m promoting someone else. And that’s Women who Wow, for me, it’s putting the spotlight on other people. That’s how you build really great relationships on social and then people want to do good things for you because you’re helping them. So all of these have been part of my strategy, but it’s sort of evolved over the years and by the way, my posts sometimes tank completely. And I’ll tell you, it gets discouraging, but you just keep going, you show up, you try different things, you keep posting. You look at what worked and what didn’t, you look at the time of day, the analytics, all those things and then just be open to pivoting again.  It’s not about the number of likes you get on a post. If I’ve helped five people, that’s great. I don’t need 1000 likes on a post. it’s nice when things do go viral – the things by the way that have gone viral for me are when I post about a challenge.

Rachel

That was a great conversation. Thanks again for joining us, Stefanie. We really appreciate it.

Stefanie

Thank you guys for having me.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa and Jessica Scheck of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

Legal Implications of Facebook Hearing for Whistleblowers & Employers – Privacy Issues on Many Levels

On Sunday, October 3rd, Facebook whistleblower Frances Haugen publicly revealed her identity on the CBS television show 60 Minutes. Formerly a member of Facebook’s civic misinformation team, she previously reported them to the Securities and Exchange Commission (SEC) for a variety of concerning business practices, including lying to investors and amplifying the January 6th Capitol Hill attack via Facebook’s platform.

Like all instances of whistleblowing, Ms. Haugen’s actions have a considerable array of legal implications — not only for Facebook, but for the technology sectors and for labor practices in general. Especially notable is the fact that Ms. Haugen reportedly signed a confidentiality agreement or sometimes call a non-disclosure agreement (NDA) with Facebook, which may complicate the legal process.

What are the Legal Implications of Breaking a Non-Disclosure Agreement?

After secretly copying thousands of internal documents and memos detailing these practices, Ms. Haugen left Facebook in May, and testified before a Senate subcommittee on October 5th.  By revealing information from the documents she took, Facebook could take legal action against Ms. Haugen if they accuse her of stealing confidential information from them. Ms. Haugen’s actions raise questions of the enforceability of non-disclosure and confidentiality agreements when it comes to filing whistleblower complaints.

“Paradoxically, Big Tech’s attack on whistleblower-insiders is often aimed at the whistleblower’s disclosure of so-called confidential inside information of the company.  Yet, the very concerns expressed by the Facebook whistleblower and others inside Big Tech go to the heart of these same allegations—violations of privacy of the consuming public whose own personal data has been used in a way that puts a target on their backs,” said Renée Brooker, a partner with Tycko & Zavareei LLP, a law firm specializing in representing whistleblowers.

Since Ms. Haugen came forward, Facebook stated they will not be retaliating against her for filing a whistleblower complaint. It is unclear whether protections from legal action extend to other former employees, as is the case with Ms. Haugen.

“Other employees like Frances Haugen with information about corporate or governmental misconduct should know that they do not have to quit their jobs to be protected. There are over 100 federal laws that protect whistleblowers – each with its own focus on a particular industry, or a particular whistleblower issue,” said Richard R. Renner of Kalijarvi, Chuzi, Newman & Fitch, PC, a long-time employment lawyer.

According to the Wall Street Journal, Ms. Haugen’s confidentiality agreement permits her to disclose information to regulators, but not to share proprietary information. A tricky balancing act to navigate.

“Big Tech’s attempt to silence whistleblowers are antithetical to the principles that underlie federal laws and federal whistleblower programs that seek to ferret out illegal activity,” Ms. Brooker said. “Those reporting laws include federal and state False Claims Acts, and the SEC Whistleblower Program, which typically feature whistleblower rewards and anti-retaliation provisions.”

Legal Implications for Facebook & Whistleblowers

Large tech organizations like Facebook have an overarching influence on digital information and how it is shared with the public. Whistleblowers like Ms. Haugen expose potential information about how companies accused of harmful practices act against their own consumers, but also risk disclosing proprietary business information which may or may not be harmful to consumers.

Some of the most significant concerns Haugen expressed to Congress were the tip of the iceberg according to those familiar with whistleblowing reports on Big Tech. Aside from the burden of proof required for such releases to Congress, the threats of employer retaliation and legal repercussions may prevent internal concerns from coming to light.

“Facebook should not be singled out as a lone actor. Big Tech needs to be held accountable and insiders can and should be encouraged to come forward and be prepared to back up their allegations with hard evidence sufficient to allow governments to conduct appropriate investigations,’ Ms. Brooker said.

As the concern for cybersecurity and data protection continues to hold public interest, more whistleblower disclosures against Big Tech and other companies could hold them accountable are coming to light.

During Haugen’s testimony during  the October 5, 2021 Congressional hearing revealed a possible expanding definition of media regulation versus consumer censorship. Although these allegations were the latest against a large company such as Facebook, more whistleblowers may continue to come forward with similar accusations, bringing additional implications for privacy, employment law and whistleblower protections.

“The Facebook whistleblower’s revelations have opened the door just a crack on how Big Tech is exploiting American consumers,” Ms. Brooker said.

This article was written by Rachel Popa, Chandler Ford and Jessica Scheck of the National Law Review. To read more articles about privacy, please visit our cybersecurity section.

Leveraging Technology to Meet Your Marketing Needs During COVID-19

Technology plays a vital role in our everyday lives and has vastly improved the way we communicate to friends, family, and colleagues alike. During these unprecedented times, technology has played an even greater role, including using it for law firm marketing efforts. While a pandemic has certainly ceased much of our normal lives, below are four ways you can use technology to keep your marketing and public relations efforts alive.

Live Stream on Social

Many social media platforms, such as Twitter, Facebook, and Instagram feature a live stream option, allowing users to broadcast directly from their home in real time. A great way to use this tool is to host Q&A sessions to discuss trending topics related to your practice area. Consider promoting the Q&A 2 to 3 weeks prior and allow people the option to submit questions ahead of time via direct message or email.

Webinars

Since most states have implemented stay-at-home orders, nearly every in-person event has been cancelled for the foreseeable future. However, that doesn’t mean presentations, seminars, or lectures aren’t possible to conduct. One of the main benefits of hosting a webinar is the ability to present from wherever and have your attendees tune-in from anywhere. Use this opportunity to adapt your presentation to be more visually appealing to a broader audience and incorporate a few real-life examples to keep your audience engaged. Be sure to also promote your webinar 2 to 3 weeks prior to maximize attendance. Additionally, for lawyer-attended webinars, consider getting your presentation CLE-certified as an added incentive for lawyers to fulfill their required CLE hours.

Newsletters & Email Blasts

If you have an up-to-date contact list, distribute a newsletter or email blast detailing how your company is helping those affected by COVID-19. This is a great way to communicate with your network and offer valuable information. Additionally, by using distribution platforms such as MailChimp and Constant Contact, you can view your newsletter/email blast’s performance analytics, including how many people viewed your content and which links were clicked the most. If you don’t have an up-to-date contact list, use this time to create or update one.

Google Analytics

 This free feature offered by the search engine giant allows users to collect website traffic information and identify the number of unique monthly visitors, among other data. Since Google Analytics tracks data in real time, you’re consistently informed of how your website is performing against your competitors. You can also generate weekly reports to pinpoint relevant keywords and search terms embedded in your URLs that drive people to your site. With this information, you can better understand the behavior of your customers, and update text or content on the backend of your website to improve your ability to reach your target audience.

© 2020 Berbay Marketing & Public Relations

For more marketing for law firms, see the Law Office Management section on the National Law Review.