Under the “it was only a matter of time” heading, a recent case in San Francisco Superior Court (where else?) seems to have landed a Silicon Valley law firm in hot water – hung by their own petard, 21st century-style (Brain Research Labs v. Clarke, 491932).  (Full disclosure: I began my legal career at said law firm, Ropers, Majeski, et al; they are a great group of people who know their stuff…which tells you how complicated things have become when even a sophisticated law firm hits turbulence over Web 2.0 issues).  Here’s what happened.

In seeking to solicit members for a potential class action suit against the maker of a dietary supplement, Brain Research Labs, a litigation partner at Ropers, Majeski uploaded a video to YouTube.  The video was a commentary by partner Thomas Clarke that sought to interest individuals who had used Brain’s dietary supplement in joining forces with Clarke in an anticipated suit against Brain.  It included some commentary about the potential defendants in the class action (Brain), including the following:

“…These scam artists do not care if you live or die.  They only want you to live long enough to give them your money.”

Brain Research Labs sued Ropers, Majeski for defamation; Ropers, Majeski sought to use California’s anti-SLAPP law as an affirmative defense to the suit.  San Francisco Superior Court Judge Harold Kahn denied Ropers, Majeski’s anti-SLAPP defense, thus paving the way for the defamation suit to proceed.  Specifically, the court found that 1) the above comments (among others) were potentially defamatory, 2) by choosing ‘new media’ like YouTube “…Clarke chose, in a 21st century way, to ‘litigate in the press’”, 3) Clarke’s selection of a broad medium like YouTube also usurped his ability to invoke an anti-SLAPP defense, as the judge noted “…there are far more narrowly tailored ways” for Clarke to have communicated with potential class members.

This case is interesting for several reasons, but most notably the case is consistent with the warnings we and others have been making for many months about the information risks associated with social media.  Using mass-communication vehicles like YouTube, Facebook, Twitter and LinkedIn entails significant risk for the exact reasons they are such powerful platforms, namely their ability to communicate truncated (and often out of context) messages to an incredibly wide audience about which the speaker may know nothing and over which they have no control…instantly.  With YouTube Clarke had no way of knowing that only – or even largely – potential class members would view his video, just as he would not have had such knowledge with Facebook, LinkedIn or Twitter (think retweets with that last forum).

This case is but one data point in what is sure to quickly become a rich body of caselaw wading into the use – and potential abuse – of Web 2.0 tools in the 21st century.  If a seasoned law firm steeped in litigation and IP-related issues can get in trouble, anything is possible.