Canada: Managing The Legal Risks Of Social Technology

Last Updated: February 12 2010
Article by Vanessa Grant, Véronique Wattiez Larose and George S. Takach

Most Read Contributor in Canada, September 2018

The Internet has spawned the creation — and phenomenal growth — of a range of social technologies. From a standing start in 2004, Facebook® now has 350 million users. That's right — 350 million. And while most of these users are between 18 and 35, the business world — and executives — are starting to participate in social technologies. Therefore, it is useful to explore certain of the dimensions of these new technologies, and to consider how to manage some of their attendant legal risks.

Web 1.0 Websites and E-mail

Most of the social technologies are associated with what is called "Web 2.0." This is in contrast with Web 1.0, which essentially consisted of the first generation of website technology. This is the generation that saw the creation of fairly static Web experiences (users would read generally unchanging information on websites; useful stuff, but largely the equivalent of the organization's paper-based materials made more accessible for being online).

Also part of Web 1.0 was "basic" e-mail. We may consider it basic now, but e-mail is no small thing — it's possibly the killer application of the Internet so far, and it's hard for many Internet-enabled people to imagine life without it. But the core use of e-mail is to effect "one-to-one" or "one-to-some" communications, while Web 2.0-enabled social technologies are about "many-to-many" communications.

Web 2.0 Blogs

Passive websites and e-mail remain very important to this day. Advancing from them, however, are a spate of social technologies that build upon the foundations of Web 1.0, but then go on to create user experiences of greater engagement and immediacy.

Consider the blog, essentially a type of website, but with regular entries (usually daily, often updated two or three times a day), opinion, commentary, photos and graphics. There are many types of blogs (a newish word, derived from the contraction of "Web log"), some no more elaborate than an individual's personal diary; but some quite sophisticated and far-reaching in their content (consider the Huffingtonpost.com).

People today are blogging about just about everything. It's estimated that five per cent of the US workforce have their own blog, and the current number of blogs is pegged at around 112 million.

From Blogs to Tweets

Blogs are just the tip of the iceberg of Web 2.0. Consider Twitter®, a fascinating form of micro blogging called "tweeting," as in the chirping of a bird. A "tweet" is a short burst of information. Each tweet message is limited to 140 characters, betraying their ancestral evolution from SMS texting (which is also limited in the number of characters per message). Of course, what the tweet lacks in number of characters per message, it makes up for in the number of messages.

Although started only in 2006, Twitter® is estimated to have some 55 million monthly visits worldwide, essentially reflecting a growth rate of 1,382 per cent. In a recent survey of some 2,000 tweets, a market research firm found about 40 per cent to be "pointless babble"; 37 per cent, conversational messages (with perhaps eight per cent worthy enough to pass along); six per cent, self-promotion by companies; and four per cent, news).

But even though most tweets are not dealing with weighty matters of state or some such, that is not say Twitter® cannot be pressed into action for a higher purpose. In the 2008 terrorist attacks in Mumbai, Twitter® users distributed the location of hospitals that needed blood. In February 2009, Twitter® users in Australia distributed valuable updates and alerts on bushfires. Later in 2009, Iranian street parties were fuelled by tweets (especially after the government blocked access to other means of communication).

Social Networking Sites

So-called social networking sites on the Internet, like Facebook® (and MySpace®) allow users to create profiles, where they can upload photos, post comments, and create links to spaces created by friends, colleagues or other like-minded individuals. Essentially, a site like Facebook® allows users to create a series of different online communities, brought together by a common interest or allegiance, but capturing a large number of "friends" (the average user has about 220 "members").

While younger people are the mainstay of a site like Facebook® (at least for the time being), consider the social networking site known as LinkedIn® (slightly like Facebook®, but not as interactive or personal, it is for business people and professionals). Users of LinkedIn® — and currently there are some 50 million in over
200 countries — maintain a list of "connections" (which includes connections of connections — think an old-fashioned Rolodex on steroids), which can then all help find someone a job or other opportunity.

Social Media Goes Corporate

To date, social technologies have been used largely by younger people to stay in touch and interact with one another. But as the rise of LinkedIn® illustrates, social media is starting to go mainstream. Economists have sites on Facebook®, and scientists are staying in touch via Twitter®.

Sure enough, the corporate world is not far behind in its interest in adopting some aspects of social technologies. Already the sales/marketing groups at certain companies are venturing forth into the choppy waters of social media. At trade shows, one can see organizations tweet their constituents. New product releases are also starting to come out in social media settings. Investor relations professionals are intrigued at the possibilities presented by social media. And some CEOs are starting to reach out to various stakeholders of their companies with social media-based messages.

As the corporate world begins to participate in social media, and take advantage of social technologies, it is imperative that organizations understand a number of dynamics of these new means of communication in order to respond to the attendant legal risks.

Characteristics of Social Media

Interactive

One major difference between the Web 1.0 and Web 2.0 environments is the degree of interactivity found in the latter. Blogs invite, and receive, commentary from readers. A blog posting is often merely the first word on a subject, and rarely the last.

Now, we have had "letters to the editor" for as long as we have had paper-based newspapers, but the difference between them and a blog comment is like night and day. Most importantly, a newspaper or magazine in the traditional print-based media has an editor, someone who reads the letters submitted by readers, and who decides which to print (perhaps after some judicious editing).

Blogs typically have no formal, pre-publication editors. Rather, anyone can submit their "letter" and see it come up on the blog; if it is offensive or libellous, it can only be removed after the fact (presumably only after the initial damage has been done).

Colloquial

The tone of much Web 2.0 typewritten communication is very informal. Rather than sounding like a formal business letter, or even a memo, it sounds like a colloquial e-mail. Indeed, so much of Web 2.0 messaging is like a conversation. Therefore, even when serious topics need to be dealt with, the tone and voice of the writing is very casual.

Often Web 2.0 writing is also very space-constrained. A tweet on Twitter® is limited to 140 characters. As a result, a whole new shorthand has developed, as "u can c if u txt message with your teenagers." In tweets and other short Web 2.0 messages, there is little room for context or nuance. As a result, much misunderstanding can be generated by a short text-based message. While this may not have grave consequences when teenagers are keeping in touch, it can have a profound impact when the tweet is from a CEO to the investment community.

Permanent

While blog postings and tweets are colloquial and conversational, and may seem ephemeral — like an oral conversation — in fact, they are permanent writings. It's as though all your conversations were indeed recorded for posterity.

Not only are these writings permanent, they are easily searchable, so that anyone can quickly locate what you've said in your online conversations. Are you getting nervous yet?

Global, Ubiquitous

Another feature worth noting about Web 2.0 dynamics is the global reach of these technologies, just like the Internet itself. And the access points available to users now include a range of handheld devices, making accessibility truly ubiquitous.

Moreover, the increasing mobility of the authors of Web 2.0 messages compounds some of the other dynamics noted above, such as the tendency to immediacy in these communications. Given that much of Web 2.0 communication is like a conversation, responses to short electronic messages and postings are given rapidly, often without any serious thought being given to the relevant issues or questions. Web 2.0 is all about acting — and reacting — in real time, and the nature of Web 2.0 writing exemplifies this super-heated cadence.

If you are getting nervous about the legal implications of some of the writings being transmitted over these social technologies, you will be interested in the legal cases already emanating from Web 2.0 dynamics, and the related legal risk management technologies, topics to which we turn in our next edition.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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