Admittedly I’ve been writing quite a bit about legal-related issues lately. Not because they’re always the most scintillating, but because they’re darn important. (Maybe we could even talk about some of them them during one of the monthly Communicator Meetups Kami Huyse is organizing in Second Life — and if Kami promises to be as entertaining as last time, it’d definitely be fun.)

It’s my view that we as communications professionals need to know, at a minimum, the very basics in order to help prevent our clients from hanging themselves. Lawyers should obviously be consulted as needed — although unfortunately, as Tom Biro points out, even they don’t always seem to get it right.

So here’s another development on the legal front, one that perhaps isn’t usually anticipated when an individual or a company starts blogging: blog contents being examined as part of of the jury selection process in order to reduce the potentially adverse affects on a trial and to avoid rogue jurors. Especially for PR professionals active in corporate affairs, reputation management, crisis communication etc., this is something to keep in mind.

The proliferation of blogs and other similar tools raises another interesting question. To what degree would commenting on a blog be regarded as impermissible contact between counsel and opposing party, or between counsel and juror? Certainly lawyers know that they cannot reveal certain information about an active case (and there are rules governing what can be said about past cases as well), but what would prevent a juror from finding an attorney’s blog and leaving comments there? My guess is that jury instructions don’t yet universally address that.

And to what degree would someone’s online statements or prior interaction between an attorney and a potential juror impact the voire dire process, such as dismissing an individual via peremptory challenge or for cause? This isn’t mere conjecture. Take a look at this recent online exchange: Although it’s unlikely that these two individuals will meet in a court of law, Richmond, Virginia prosecutor Tom McKenna has stated that he’d "definitely be striking him [Chicago-based  Mark Draughn] off any of my jury panels."

Things to think about.

(Photo from tizzie)

Case in point is an ABA eReport article that discusses a New York State proposal that would designate legal blogs as advertising, thus subjecting them to state scrutiny and regulation:

"The storm was set off by a proposal that ‘computer-accessed communications’ such as blogs be included in New York’s definition of legal advertising, and therefore require state scrutiny. The proposal, by a committee created by the state’s Administrative Board of Courts, also suggests the state code of professional responsibility extend court jurisdiction to out-of-state legal advertising that appears in New York….

And if blog posts must be approved, what’s the point? ‘This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era,’ wrote Dennis Kennedy, a St. Louis lawyer who posts at Between Lawyers." [Read Kennedy's post If Lawyers Can Advertise in New York, They Can Advertise Anywhere...But They Probably Can't.]

Equally bothersome, however, is when individuals expose themselves to legal liability by doing something that appears to be intentionally stupid. I’m referring to examples provided in the USA Today article Courts are asked to crack down on bloggers, websites (via Chris Heuer), such as posting false STD information about someone on Don’tDateHimGirl.com or setting up a fake MySpace.com page that contains obscene content. Not very smart — and that’s an understatement.

Josh Hallet, who is hosting Friday’s BlogOrlando conference, emailed the session leaders a reminder that our role isn’t to spoon feed the audience with information, but to lead and facilitate the discussion. Phew, that makes it a lot more interesting!

And since the Legal Issues session is scheduled for right after lunch, I hope no one’ll be in a food coma when they come back   Why? Well, because this session gives us an opportunity to cover some important areas, such as whether bloggers are considered journalists and if so, what legal protections they may have; libel & slander (and the role of satire); how to protect against liability regarding blog comments left by other people, and so on. And if we have time, we can also talk about what conflict management approaches, short of using cease and desist letters or initiating other legal action, may be open to bloggers.

In other words, this session will hopefully provide basic information that ultimately will help us avoid some mine fields and allow us to focus on what we really enjoy doing — communicating and interacting with our readers and others in the community. 

Here’s a brief list of some helpful sites to know about:

• Electronic Frontier Foundation
• Chilling Effects Clearinghouse
• Media Bloggers Association
• The Reporters Committee for Freedom of the Press
• The Berkman Center for Internet & Society at Harvard Law School
• Stanford Law School for Internet and Society

And these lists of blogs, compiled by 3L Epiphany, are also good information sources and commentary to keep on hand:

• Media Law blogs
• Internet Law blogs
• General Intellectual Property Law blogs
• Technology and the Law blogs

I recently started bookmarking legal-related information pertinent to blogs, podcasts and vlogging on del.icio.us. While the list definitely isn’t comprehensive, maybe you’ll find something of interest to you, so feel free to have a look.   

See you Friday!

Yeah, there are only so many hours in the day… or, as I’ve been guilty of doing, only so many hours of sleep you can sanely forfeit.

Still, I’ve found that my involvement with Second Life so far has been very beneficial.

And now there’s another Second Life-based event that I’m looking forward to, Harvard Law School’s CyberOne: Law in the Court of Public Opinion, which is about "the creation and delivery of persuasive argument in the new integrated media space constituted by the Internet and other new technologies. Our premise is that ‘First World’ and corporate domination of entertainment media, laws, and news can be balanced by the voices of individuals, groups and universities who use new media intelligently."

The course is open to Harvard Law students and Harvard Extension School students, but also to anyone with an Internet connection. Check out the course details for at-large participants. 

Alright, I’m on board.

Update 8/24: After posting the update of 8/22, I e-mailed Ms. Walters, Goodwill of Central Virginia’s Director of Marketing & Communications:

"As promised, I amended my blog post to reflect the information you shared with me. If for some reason there are inaccuracies in my latest update, please let me know so I can correct them immediately."

An e-mail I received from Ms. Walters this morning explained that there are some remaining inaccuracies and that Goodwill would appreciate that they be corrected. These changes mostly concern what the alleged eyewitness told me. It’s important to note that there is a discrepancy between what this individual, who claimed to have been on-site at the time, and Goodwill states — namely that, based on the surveillance video, only the former employee and the private investigator were on-site at the time, thus putting into question the accuracy of what this "eyewitness" allegedly saw and heard. 

As Goodwill is most likely aware, it is common practice, in support of the blogosphere’s spirit of transparency, to correct factual inaccuracies — especially when they are substantive in nature — in such a way that readers can follow both the original "error" and the correction. Furthermore, due to earlier versions of a post being captured electronically, "overwriting" entire posts is not recommended.

Therefore, I’ve attempted to reconfigure the text of the original post to reflect the facts as presented by Ms. Walters via the written edits she submitted to me, in conjunction with the changes made on 8/22. However, I also attempted to stay as true as possible to the story shared with me by the alleged eyewitness in order to accurately report what I was told, keeping in mind that the eyewitness statements are simply one person’s interpretation of what actually occurred.      

First a bit of background. Over the past decade I’ve donated many items to various non-profit organizations, and in the past year to Goodwill of Central Virginia. Most of the time when I stopped at the local donation site a man I’ll call "Joe" helped me. "Joe" had been employed by Goodwill for several years and was well-known in the shopping center where the donation site was located. But yesterday "Joe" wasn’t there.

Here’s what I was told by an eyewitness someone who claimed to be an eyewitness:

A woman came to the donation site with a sob story of how she had just moved into a new place, had little money, and no furniture to put in it. She saw gently used baby equipment at the site and wanted to know if maybe — please — she could take it, even though this wasn’t really allowed.

Now, "Joe" no doubt knew that he should ignore this plea. But after taking pity on the woman, "Joe" relented.    

Shortly thereafter, "Joe" was fired from his position.

So here are the questions, assuming the incident as outlined above is true and accurate:

• Should "Joe" have allowed the woman to have the baby equipment? No, as it wasn’t his to give away.
• But would he have been inclined on his own to give someone these items, without being induced?
• And weren’t "Joe’s" actions in line — in spirit, at least — with Goodwill’s mandate of helping people in need? Goodwill’s position is that "the resale of donated items funds critical education, training, and career services to help people in need. Donations are the lifeblood of our organization. Fewer donations = less dollars for programs = less people served"
• Did he, through his actions, violate the organization’s Code of Ethical Conduct?
• Did he personally profit from this action, and should this have factored into Goodwill’s decision to terminate him?
• Was the punishment excessive, and would an option instead have been to give him a reprimand and unpaid time off from work?

Goodwill of Central Virginia’s leadership is comprised of several attorneys. Perhaps they were consulted, or helped establish policies, that govern situations as the one mentioned here.

————————————————————————————————————

ORIGINAL POST OF 8/19:

It doesn’t take much to question the reputation of an organization — even an unconfirmed story such as the one outlined below.

First a bit of background. Over the past decade I’ve donated many items to various non-profit organizations, and in the past year to Goodwill of Central Virginia. Most of the time when I stopped at the local donation site a man I’ll call "Joe" helped me. "Joe" had been employed by Goodwill for several years and was well-known in the shopping center where the donation site was located. But yesterday "Joe" wasn’t there, apparently the victim of a sting.

Here’s what I was told by an eyewitness someone who claimed to be an eyewitness:

A woman came to the donation site with a sob story of how she had just moved into a new place, had little money, and no furniture to put in it. She saw some old pieces at the site and wanted to know if maybe — please — she could take it, even though this wasn’t really allowed.

Now, "Joe" no doubt knew that he should ignore this plea, regardless of how desperate the woman appeared (and according to the eyewitnesI spoke with, person who claimed to be an eyewitness, she layed it on pretty thick). But after taking pity on the woman, and apparently given the old condition of the furniture, which the eyewitness told me would likely have been disposed of anyhow, "Joe" relented.    

A few moments later, the conversation having been secretly recorded, "Joe" was fired from his position by the very women, actually an employee of Goodwill, who entrapped him (strictly speaking, entrapment is a legal term that involves a law enforcement officer or his agent inducing or persuading someone to commit a crime that he had no previous intent to commit; here the women was neither a part of law enforcement or an agent thereof).   

So here are the questions, assuming the incident as outlined above is true and accurate:

• Should "Joe" have allowed the woman to have the furniture? No, as it wasn’t his to give away.
• But would he have been inclined on his own to give someone these items, without being induced?
• And weren’t "Joe’s" actions in line — in spirit, at least — with Goodwill’s mandate of helping people in need?
• Did he, through his actions, violate the organization’s Code of Ethical Conduct?
• Did he personally profit from this action, and should this have factored into Goodwill’s decision to terminate him?
• Was the punishment excessive, and would an option instead have been to give him a reprimand and unpaid time off from work?

Goodwill of Central Virginia’s leadership is comprised of several attorneys. Perhaps they were consulted, or helped establish policies, that govern situations as the one mentioned here.

Update 8/21:

I spoke with the supervisor for the donation site, Henry White, and told him that I’ve been a regular donor to Goodwill and wondered why "Joe" was no longer employed there. Mr. White commented that "[Joe] went on to better things." When I mentioned to him the story I’ve been hearing, he said "that’s not what happened" and referred me to Human Resources.

I called HR Supervisor Michelle Danner and explained to her what I had heard and wondered whether she would comment on the situation, but she referred me on to Missy Murdock, Vice President, HR.

After telling Ms. Murdock that I’m a regular donor to the organization and that I’m concerned about what I’d heard, she stated that she couldn’t speak about this. I also mentioned that I work in PR and that, by not commenting, the impression that "Joe" had been somehow set-up was the only one left with the public. Ms. Murdock repeated that she could not comment and thanked me for the call.

——————————–

From a public relations perspective, is the negative word-of-mouth surrounding the circumstances of Joe’s termination — which, by the way, is apparently being was characterized as a voluntary quitting by the alleged witness –  worth Goodwill maintaining a "we will not comment under any circumstances" policy? 

While I appreciate Goodwill of Central Virginia’s general policy of not commenting on confidential employee matters, the refusal to make a statement explaining its side of this story, even in very broad terms — and instead leaving the impression that a former employee was terminated under questionable circumstances — probably isn’t an entirely productive approach.       

Additional note:

I’ve edited this post several times as I’ve received more information and tried to address the points made in the comments.

Update 8/22:

Aimée P. Walters, Goodwill of Central Virginia’s Director of Marketing & Communications, contacted me via e-mail today, and we had a phone conversation about Goodwill’s mission, policies and procedures, codes of conduct, employee training, and, of course, the incident discussed above, without divulging any confidences she is obligated to keep either by law or policy. She also mentioned that tomorrow she intends to leave a comment on this post, in order to explain, in the organization’s own words, what transpired. And, just to note, Ms. Walters consented to our conversation being "on record."

According to Ms. Walters, Goodwill has a very strict policy governing donated items and loss prevention that is communicated to its employees. Furthermore, it lets its employees know that donation sites are canvassed at random — which is what Ms. Walters said took place here:

– A licensed, female private investigator (who is a former undercover police officer), was canvassing several of the donation sites on the day in question. She approached "Joe" and had a 16-second conversation with him, which was recorded on a surveillance video w/o audio, as permissible by law.

– Based on the communication between the investigator and "Joe," which was transcribed by the investigator (the specifics of which were not shared with me), a policy violation took place that was grounds for termination.

– The incident did not involve furniture, but instead baby items.

– The surveillance video did not indicate that any other person besides "Joe" and the investigator were present.    

Not directly related to the facts of this situation, but nevertheless interesting, was that Ms. Walters said she first learned about this post from someone outside Virginia (I believe she said California and Arizona, and maybe she’ll confirm that in her upcoming comment) who filled out Goodwill’s online form, perhaps this one, and provided a link to the post itself. Only later did she find out, when speaking with Ms. Murdock, that I had contacted Goodwill directly — it had apparently been Ms. Murdock’s understanding that I was simply a concerned donor, which is why my inquiry was not passed on to Ms. Walters. Mentioning that I work in PR did not trigger me being put in touch with Ms. Walters, who deals with media-related matters.

The exhibits offer insight into one of the most important legal cases of modern history, and their emotional impact can’t be overestimated (the exhibits include actual 9/11 video footage and recorded calls, a collection of photos of the victims, as well as graphic photos of bodies found inside the Pentagon after Flight 77 crashed into it).   

As explained in the overview, the exhibits are organized first by the party seeking their admission (Prosecution Trial Exhibits are available here and Defense Trial Exhibits are available here), second by the phase of the trial in which they were introduced (Phase One concerned Moussaoui’s eligibility for the death penalty, and Phase Two concerned whether he would be sentenced to death or to life in prison without the possibility of release), and third, by exhibit number.

(Photo of Prosecution Exhibit No. FO08301 available here.)

Defamation (from Law.com Dictionary):

n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander.

Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

Libel (from Law.com Dictionary):

1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others.

Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation.

It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie.

Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue….

Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit…. Minor errors in reporting are not libel… 2) v. to broadcast or publish a written defamatory statement.

Slander (from Law.com Dictionary): 

n. oral defamation, in which someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed.

Slander is a civil wrong (tort) and can be the basis for a lawsuit.

Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove….

Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much as if not more than printed publications.

Harassment (from Law.com Dictionary):

n. the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. The purposes may vary, including racial prejudice, personal malice, an attempt to force someone to quit a job or grant sexual favors, apply illegal pressure to collect a bill or merely gain sadistic pleasure from making someone anxious or fearful.

The list of sessions is available here, with more sessions possibly in the works. One already on the schedule is "Legal Issues," which I’ll be leading.

The legal issues around blogging, podcasting and vlogging are still evolving and sometimes tricky. So if there are any particular things you’d specifically like to know more about, please email me or leave a comment and I’ll make sure we have the latest information on hand when we meet.