Lawyers really shouldn’t ignore Facebook

Kevin O’Keefe has published a post titled “Why lawyers can’t ignore Facebook for networking“. The post basically lists some statistics (for example, 150 000 new registrations a day, the most growth with users over the age of 25 and the fact that the average user spends 20 minutes on the site) which emphasise how valuable Facebook is as a potential networking tool. What is equally important to me is the fact that there are 150 000 more people signing up each day who are becoming part of a network that is governed by a set of contracts and laws which could impact on them should something go awry.

I am really not an alarmist but I find it interesting that there is still a fair amount of interest in the risks posed by services like Facebook by the mainstream media. I have been interviewed a couple times in the last week or two by journalists interested in users’ rights should something go wrong (I wrote a little about some of the issues here and here). I was interviewed today about privacy issues and identity theft on Facebook and although the Facebook terms of use are not all that bad relative to other services’ terms of use, users really need to be mindful of what they are agreeing to when they click on the link or checkbox indicating that they have read the terms of use and agree to them. It is a good idea to read the terms of use or, if you can’t make out any English words in the legalese, chat to a lawyer for clarification. As O’Keefe’s article points out, Facebook is becoming a very popular business networking tool. This means that business users are potentially exchanging business information on their profiles and using the messaging tool on Facebook which could theoretically be compromised by hackers or a bug in the software. This, in turn, means that this potentially sensitive information could wind up in the wrong person’s hands and the question then becomes what your remedies may be.

The terms and conditions you agree to on services like Facebook (and it isn’t just Facebook – any decent web service will have a decent set of terms and conditions – it just makes good sense to put these terms and conditions in place on every web site) you contractually limit your options if something goes badly. In the case of Facebook you agree, for example, that you can’t hold Facebook liable for a number of things ranging from bugs to organised hacks. You also consent to the law of a state in the USA and to the jurisdiction of American courts so this presents a practical challenge. If you choose to litigate against Facebook you have to cover the costs of an American legal team in addition to a local legal team as well as the associated costs of conducting litigation in another country.

Of course I am not saying you shouldn’t use Facebook. I use it myself and think it is, on the whole, a fantastic service. What I am saying is that you need to know what you are agreeing to and conduct yourself accordingly.

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