Beware of errant signposting
29 Nov 2016
Where are we going? New media, technology and the law
New media is affecting the practice of law in many ways, from social media pages being tendered as evidence to live posting from court. This article will provide a quick snapshot of what is happening with new media across the industry.
How are law firms using new media?
For a number of years now, law firms have employed new media to market themselves to existing clients, reach out to new ones, and recruit new talent. Facebook pages, LinkedIn profiles, and Twitter pages are common. They provide opportunities for firms to describe what their lawyers have been up to (such as high profile cases, awards and nominations), profile new employees, and share pro bono and community initiatives that the firm is involved in. New media is certainly a useful tool that will continue to be part of the business development strategies of many firms.
How are lawyers using new media?
Many practitioners are now using new media as part of their individual marketing strategy. Initially legal blogs were the tool of choice, however as publication of case updates and articles has increased exponentially in recent years, there appears to be a move away from blogs towards ‘feed’ platforms such as Twitter and LinkedIn as a way to share content with subscribers. The reason is simply convenience – rather than having to navigate to a particular blog, a member of the public can simply subscribe to a practitioner’s Twitter feed in order to see the practitioner’s thoughts and publications. This way, they only need to open their home Twitter feed to see all their content in one place. Podcasts are one of the more recent platforms that are gradually being explored by practitioners. They are useful in that they allow a practitioner to develop an audience in a niche market by giving regular updates and presentations on an area of specialist expertise.
How is new media affecting practice?
With the potential to have clients as friends and followers on various forms of new media, it is possible to get instructions over new media, and even give advice. However this opens up the possibility of an inadvertent retainer being created, and the liability issues that flow from this. It is not hard to imagine that a firm or an insurer would resist liability coverage for a practitioner that, without authorisation or approval, is issuing advice over their personal new media platforms. Another issue that this opens up is record keeping – posts are often deleted and removed, and it can be very difficult to prove what was written in the absence of a letter or email.
It is important to realise that most, if not all, new media platforms will include as a term of their contracts that you are granting the platform a worldwide licence to use what you publish. These terms are agreed to at the outset of starting a profile, such as the ‘click-wrap’ or ‘browse-wrap’ contracts used by Facebook and Twitter. Other new media services, such as Google, provide that simply by use, you agree to their terms, so simply by searching for something on Google, you are agreeing for Google to collect and use that information.
New media is also a useful source of evidence. Once something is in the public domain, it is in the public domain. A Twitter post or a Facebook photo may be useful in identifying an individual’s location or state of knowledge for example, and can be tendered as evidence. Substituted service is even possible over new media, however you still need to be aware of the jurisdictional limitations of the relevant court. 1
New media content is also fast becoming a source for defamation and employment cases. Just this year an award of damages of $150,000, plus interest and costs, was handed down as a result of the damage to the plaintiff’s reputation suffered because of a Facebook post.2 Posts ‘going viral’ can also open up defamation issues, such as the current case involving Ziggy Mosslmani, the young man who has commenced a defamation action against various media organisations after his mullet hairstyle was ridiculed as a result of a photo taken at his 18th birthday party that was uploaded onto the photographer’s Facebook feed and then widely shared.
How is new media affecting the Courts?
Many Courts have enthusiastically embraced new media. The New South Wales Supreme Court and the New South Wales District Court are two examples of courts that have their own Twitter pages. These are a valuable way for the courts to provide the public with access to the latest judgments and decisions. In New South Wales, ‘live posting’ of court cases is also permissible for lawyers and journalists. However, a recent incident in the Gable Tostee murder trial is a reminder of the potential for social media to disrupt court proceedings. Here a juror almost caused a mistrial after she posted multiple photos to Instagram during deliberations. The mistrial application was ultimately rejected due to the juror’s posts being ruled not to have jeopardised the accused’s right to a fair trial. It raises the question of whether juror’s social media access should be restricted during jury deliberations.
Are online-only law firms the way of the future?
While there has been a steady rise of online-only law firms in the UK and the US since 2008, Australia has been much slower on the uptake, however eventually followed suit in 2014 with online-only law firm, LegalVision.
Many thought (and think) that online-only law firms, or ‘weightless’ law firms, were set to disrupt traditional law practice as we know it. Many employ a business model that enables the firm to keep overheads down and pass these savings on to their clients. LegalVision in particular boasts that it can draft, amend and sign off on a legal document as well as engage in a Skype-meeting with their client for under $500.
Are online-only law firms the way of the future? While LegalVision and other online-only law firms are progressive, with a primary focus on affordability and efficiency, whether they actually pose a real threat to traditional corporate firms is yet to be seen.
How are advances in technology changing the way we practice law?
A more advanced example of the way technology is affecting the way we practice law comes from law firm Allens, who started an in-house group known as LawLab. The LawLab group is a group of lawyers and legal professionals who use legal technology that involves artificial intelligence and predictive computer coding to provide advice and services in the areas of property and conveyancing.
The recent online article posted by the University of NSW on the UNSW Law Hackathon demonstrates how law and technology can complement each other. The focus of this year’s Hackathon challenged students to develop ways to improve the systems used by the Refugee Advice and Casework Services (RACS). The winning proposal was an app which would assist case workers in filling and submitting applications for referral. Barristers would be able to access materials through the app, along with a scheduling tool which would automatically assign the barrister to a particular brief if they were available.
What are the legal liability issues we should be alive to?
There are a number of legal liability issues which stem from the use of new and social media, especially the use of social media by legal practitioners.
As noted above, defamation and employment cases involving social media are increasingly common. Early concerns about whether employers could ‘reach into’ the social media lives of their employees have disappeared, and it is certainly accepted that comments about employers or fellow employees on social media can have ramifications for the employment contract. It might not be long before we also start seeing more reported cases of bullying over social media.
Lawyers also need to be mindful about providing information on their social media platforms that could be construed as legal advice. It is always a good idea to make it clear to the reader than any information provided is not legal advice and cannot be relied upon for that purpose. While there have been no reported case decisions concerning negligent advice given over social media, it is certainly within the realm of possibility that an inadvertent retainer could be made between a Facebook “friend” and the legal practitioner who has provided them with legal advice on their social media platform.
While lawyers must always be wary that their actions and comments do not bring the law into disrepute, the informal nature of social media greatly increases the risk. Practitioners need to be extremely careful of what they post on their social media platforms if their post concerns judicial officers or fellow colleagues in the legal profession (not recommended) or, if expressing an opinion about current legal proceedings, that they do not in any way pervert the administration of justice.3
The informal nature of social media also makes it extremely easy to blur the lines of your social life and professional life. It would be unethical and a breach of the ‘no contact’ rule4 to send a ‘friend request’ to the client of an opposing party in order to gain access to their Facebook page. Similarly, caution should be exercised if a client of an opposing party sends you a friend request.
The Way Forward
New media will continue to shape the practice and lives of legal practitioners. Perhaps the most sensible response for firms confronted with the issues raised above is a social media policy. These are increasingly common in the government and corporate sectors, and provide a means by which a firm can guide and regulate the social and new media behaviour of their employees. For those practitioners that are up for the challenge, new media certainly presents interesting and unique ways to market yourself to a wide audience and so build a support base of interested clients, friends and followers.
Authors: Hannah Veldre, Law Graduate and Brendan May, Lawyer.
The authors wish to thank Philip Stern (Adjunct Associate Professor at the University of Notre Dame, Sydney and Consultant at Piper Alderman, Sydney) for his assistance in writing this article.
1. See Flo Rida v Mothership Music Pty Ltd  NSWCA 268.
2. Rothe v Scott (No 4)  NSWDC 160.
3.Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 3; 28
4. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 22.4, 33