Social Media: The virtual world v. IRL

Since Contra Costa Lawyer last explored issues at the intersection of social media, technology, and the law in July 2019, just three years ago, the world has changed quite a bit.

In 2019, most people lived relatively normal lives. They went to work in busy offices, dined out at restaurants and bars, traveled freely, and otherwise spent time with friends and family without a care. Today, with the unwavering COVID-19 pandemic, folks are more cautious and intentional with their physical and social interactions, including on social media. Today, many of the issues with social media in 2019 have only been amplified. In 2019, Facebook faced both political and societal backlash for disseminating “fake news” on its platform; today, misinformation spreads on all social media platforms at an especially accelerated speed, resulting in greater calls for more robust content regulation. Concurrently, people are relying more on social media as their source of truth, as public trust has dramatically shifted away from traditional news media in favor of content on social media. Consequently, social media’s power in shaping public sentiment has greatly increased.

This issue on social media is especially timely. As the pandemic forced cities to lock down and mandate social distancing, people turned to social media as their main outlet for communication. From TikTok dance crazes to sharing bread baking tips and analyzing Tiger King at length, people became more active on social media. For attorneys, in-person networking opportunities shifted from law firm events and happy hours at local bars, to virtual meetups and creating relationships through LinkedIn and Facebook. Remote depositions and even trials became a viable (and sometimes preferable) alternative. As the virus mutates into different strains and hopefully enters a terminal stage, we expect life to return to normal. However, the increased use of social media will continue to change the practice of law, and for everyone else, conduct on-line and on social media will have increasing real-world legal implications. Therefore, even the Luddites among us need to be aware of the “virtual world” and its ever-encroaching influence IRL (“in real life”).

The articles in this edition represent just a small snapshot of the issues that we encounter in the legal profession.

• The Honorable Clare Maier provides a judicial perspective on social media, including judges’ personal and professional use of social media and whether attorneys and judges should be “friends.”
• What happens to social media accounts when their owners pass away? Kristin Howe and Madison Gunn consider the options and provide estate planning tips in preparation for the inevitable.
• Scott Isherwood explores the anti-SLAPP statute in California and discusses how the California court’s latest anti-SLAPP holdings involving social media posts signal a change in how these disputes are evaluated.
• Social media is a powerful marketing tool, and Austin Kurtz and Kristen Chui make the case for attorneys embracing, rather than scorning, social media for attorney advertising purposes. Although attorneys may look to other non-legal businesses to guide their social media marketing strategy, attorneys are faced with unique ethical constraints, some of which are outlined.
• Adam Carlson provides insight and his personal experience with social media content being used as evidence in litigation. He outlines how to admit social media posts into evidence and how to deal with the issue of authenticity, as well as how to defend against social media posts that were admitted against your client.
• Marta Vanegas discusses how social media platforms’ status as “publishers” under Section 230 of the Communications Decency Act has allowed them to largely avoid legal liability with respect to content moderation.

We are immensely grateful to our authors for contributing and sharing their knowledge and expertise. With that, we are happy to present to you Contra Costa Lawyer’s Social Media issue – March 2022.