Canadian Lawyer

OP I N ION BY JIM MIDDLEMISS BACK PAGE also creating a revolution in the way warring parties gather evidence in liti- gation. Facebook, LinkedIn, YouTube, and Twitter have been at the forefront of recent disputes touching on everything from shareholder lawsuits to fights over privacy, defamation, copyright, patents, commercial litigation, and even owner- ship issues. In June, Reuters reported LinkedIn was S ocial media companies are the new litigation whipping post, sparking a worldwide frenzy of lawsuits. Oddly, at the same time, they are Digital documents of dastardly deeds defending or launching litigation, they are also changing the way litigation is con- ducted. In family law, for example, couples are turning to social media, including dating sites, to ferret out nasty online com- ments and cheating habits of their spouses. Police are using social media to build cases against criminals. Employers are using the sites to track comments of disloyal employees, unearth fibs in resumes, and check for the character flaws of those they are interested in hiring or firing. Why not? It' Not only are social media companies sued in the United States for $5 million after six million customer passwords were stolen; Twitter has sued to stop spammers from using its system to promote false and misleading products. BBC reported in April YouTube lost a battle in Germany over content users post to its site and may be forced to pay royalties. Then there' to have more lawsuits than it does happy investors. Earlier this year, Facebook had its knuckles rapped by Canada' s Facebook, which seems privacy commissioner over its consent policies. Its ongoing litigation portfolio includes an ownership lawsuit, a patent suit from Yahoo, and shareholder lawsuits from irate investors after its initial public offering tanked. Nary a week goes by with- out some social media company finding itself engulfed in fresh litigation. Banks, pharma companies, and oil and s federal gas firms used to wear the big red tar- get on their backs drawing the wrath of litigants. Now, it is social media companies that are lawyering up. No other industry has drawn such a wide and varying swath of litigation so quickly in its young life. One need only look at the disclosure the few companies that documents of are publicly traded to get a sense of the impact that litigation is having on their businesses. Here' "We are involved in numerous class action s what Facebook says: lawsuits and other litigation matters that are expensive and time consuming, and, if resolved adversely, could harm our business, financial condition, or results of operations . . . defending any lawsuit is costly and can impose a significant burden on management and employees." LinkedIn notes: "We are party to law- suits and legal proceedings. . matters are often expensive and disruptive to normal business operations. We are currently facing, and expect to face in the future, allegations, lawsuits and regula- tory inquiries, audits and investigations regarding data privacy, security and intel- lectual property infringement, including claims related to privacy, patents, publicity, trademarks, copyrights and other rights. Litigation and regulatory proceedings, and particularly the patent infringement and class action matters we are facing or may face, may be protracted and expen- sive, and the results are difficult to predict." They have become the 21st century . . These version of toxic tort litigation. However, it is not chemical and oil spills under fire, rather the trafficking of data and personal information. Many social media compa- nies are also getting caught in the crossfire of litigation, being dragged into court to fight attempts to get at information about accountholders and their postings. 46 N O VEMBER / D ECEMBER 2012 www.CANADIAN Lawyermag.com ing thanks to a society that has deemed it appropriate to tell all. A quick search of case law reveals s all out there for the tak- Facebook alone has been mentioned in more than 900 judgments, while LinkedIn, Twitter, and YouTube have popped up in more than 50 cases. The term social media has appeared 68 times. Where would litigators be without these digital documenters of dastardly deeds? At least a couple of Canadian law firms are looking to cash in. Gowlings and Dale & Lessmann have created social media practice groups (other law firms may as well, but these were the only ones that turned up on a Google search of "Canadian law social media." I had to dig deep into the search results to find the Dale firm, so if your firm has such a practice group, it needs to revisit its search engine optimization). Many question the purpose and staying power of social media. However, no one should doubt this: It' the way people communicate and that's s having an impact on affecting litigation and the way lawyers prepare cases. You may be a naysayer, but don't overlook social media, especially in your next trial. The answers you need to build your case may only be a click away. Jim Middlemiss blogs about the legal profes- sion at WebNewsManagement.com. You can follow him on Twitter @JimMiddlemiss. scott pAge

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