Web 2.0 and its impact to professional practice
by Leah K. Dizon
A.INTRODUCTION
Web 2.0 is commonly associated with web applications which facilitate interactive information sharing, interoperability, user-centered design, and collaboration on the World Wide Web. Examples of Web 2.0 include web-based communities, hosted services, web applications, social-networking, video-sharing sites, wikis, blogs, mashups, and folksonomics. A Web 2.0 site allows websites where users are limited to the passive viewing of information that is provided to them. (Source: Wikipedia, accessed October 29, 2009, at 10:30am)
This paper, which is in partial requirement of requirements for the Technology & the Law course under Prof. Michael Vernon Guerrero Mendiola, discusses the impact of Web 2.0 social-networking and blogs on the legal profession, practice of medicine and education, culled from online sources. Bulk of the available online materials concern US-based users of Facebook and Twitter, and education blogs as there is a lack of sufficient materials on the topic from Philippine-based sources. Lastly, guidelines are suggested so that social networking would not affect a professional’s career in a negative manner.
B. IMPACT ON THE LEGAL PROFESSION
Blogging Lawyers Face Ethical and Legal Problems
In the United States of America (USA), certain blogging lawyers and judges encountered problems with legal ethics regulators, and one blogging lawyer was charged for defamation. Debra Cassens Weiss posted in the ABA Journal on September 14, 2009, citing Texas Lawyer Reports and the IP Law and Business as sources:
On September 14, 2009 in Tyler, Texas, plaintiff intellectual property litigator Eric Albritton accused lawyer Richard Frenkel of defaming him in anonymous postings on his blog while Frenkel was an in-house lawyer for Cisco Systems. In the blog, Frenkel allegedly accused Albritton of conspiring with a federal judicial clerk to alter documents to obtain subject matter jurisdiction in a patent suit. The defamation suit was settled before jurors started deliberations when the federal judge handling the case ruled that Albritton could not be awarded damages unless he was able to prove actual malice.
Weiss also cited the New York Times and the Legal Profession Blog as having reported that Kristine Ann Peshek, an assistant public defender in Illinois, lost her job and was accused in a disciplinary complaint of revealing client confidences in her blogs. Peshek was accused of blogs identifying clients either by their first names, a derivative of their first names, or by their jail identification numbers. Peshek, denying the allegation, told the ABA Journal that she did not post any information that would identify a specific client, without that client’s permission, or without the information being a public record. Peshek’s other blogs included calling one judge an “___hole,” and another judge as “clueless.”
The New York Times also reported that lawyer Sean Conway landed into trouble when he criticized a judge. Conway agreed to a reprimand in a conditional plea after blogging that certain judge was an “evil, unfair witch.” Conway submitted a brief to the Florida Supreme Court, claiming that his remarks were protected by the First Amendment, but the court affirmed the disciplinary agreement in April 2009.
The NY Times reported other unfortunate Facebook posting consequences: Galveston Judge Susan Criss told lawyers at the ABA Annual meting about a lawyer who requested for continuance because of a death in the family. When Judge Criss checked the lawyer’s Facebook page, she discovered a week of drinking and partying. In yet another case, lawyer Frank Wilson of San Diego who posted blogs when he was a juror, lost his job and was suspended from practice for 45 days.
Discovering Legal Evidence in Social-Networking Sites
On June 25, 2009, Sylvia Hsieh posted in http://lawyerssuaonline.com.blog how family lawyers are missing evidence on social networking websites. Citing Lee Rosen, a divorce attorney in Raleigh, N. C., author of the Divorce Discourse Blog, “Family law attorneys are really lagging behind other lawyers and judges.” Rosen finds evidence on Facebook routinely, noting that most cases are quickly settled where there is evidence of adultery. Evidence may be in the form of incriminating photos or wall-messages on the Facebook page of a straying spouse. In one case, a judge admitted evidence that the spouse sent threatening message in a “friend request” to the other spouse.
Hsieh reports that these days of prevalent social networking, lawyers also worry about their own clients’ postings. Divorce lawyers must warn their clients about the dangers of social networking while a divorce action is pending. In one case, the client was urged to take down her site entirely when her Facebook page included a photo of her with her boyfriend in a hot tub.
When it comes to divorce or child custody cases, lawyers search for confessions online. These may include activities of the parties, places they visited, and people in their company when their child is around. An example would be a case when the parent is restrained from taking a child out–of-state; and such parent may have posted photos of Disney World visits. Or, in a custody case, a father denied drug use but his MySpace page featured marijuana leaves.
In support proceedings, lawyers may search Linkedln profiles for evidence like postings of earning capacity or job prospects. There was a case of a spouse who was not keen on paying support, claiming he had no real job prospect after a lay off. He was cornered by the lawyer when his Twitter messages clearly showed he was about to be hired.
In the middle of her divorce trial, the soon-to-be-ex-wife of singer Usher tweeted that her lawyer was “horrible” and asked where she could find a replacement lawyer. As with many other users, she was not aware that her tweet would go beyond her circle of “friends.”
Many Facebook and Twitter users assume that their messages and photos are private, not paying much attention to privacy settings. So, many lawyer firms ask their legal assistants to go on all networking sites and do “damage control” for their clients. Lawyers usually discuss tightened privacy settings and online photo album deletions with new clients.
In the USA, family lawyers have had no trouble obtaining evidence from social networking sites or admitting the same into evidence. When one does not delete his sites or blogs, these records are stored and can be retrieved indefinitely. These data may even be ordered to be produced under subpoena power. Though judges have allowed Facebook and Twitter postings into evidence, many lawyers anticipate that authentication may be an issue in the near future. In divorce and custody cases, for example, people may create false Facebook or Twitter pages, pretend to be the other spouse, and post threatening or inappropriate messages.
C.IMPACT ON THE MEDICAL PROFESSION
New Challenges in Clinical Settings
Sachin H. Jain, MD, MBA, in her article Practicing Medicine in the Age of Facebook (The New England Journal of Medicine, Volume 361:649-651,Number 7; August 13, 2009) wrote on her anxiety about merging her professional and personal life, when she received a “friend request” on Facebook from someone whose baby she helped deliver three years earlier. During medical training, educators emphasize the importance of maintaining professional distance, an issue that physicians and medical institutions have dealt with for generations. Crossing boundaries, though an old clinical problem, is different these days because of social networking sites as new medium.
Jain gives as an example the MICU nurse who blogged about a difficult patient, forgetting that one of her friends is a member of that patient’s family. There was also the case of a clinic patient who viewed a dermatology resident’s online profile, and upon learning that the latter was single, asked her for a date. And a medical professional whose clinical judgment is put to question after several online photographs showed him apparently drunk in a party.
Medical schools, Jain wrote, are trying to keep pace with the potential effects of such networking on clinical practice. Dean for Medical Education Jules Dienstag of Harvard Medical School, for one, sent this e-mail to students and faculty: “Caution is recommended … in using social networking sites such as Facebook or MySpace. Items that represent unprofessional behavior that are posted by you on such networking sites reflect poorly on you and the medical profession. Such items may become public and could subject you to unintended exposure and consequences.” Medical students at the Drexel University College of Medicine are warned that information they place on social networking sites might influence the fate of their postgraduate training applications: “Programs /employers are increasingly gaining access to social networking sites such as Facebook and MySpace to see what they can learn about candidates.”
Legal questions concerning the relationship between social networking and clinical medicine are currently undefined but remain a concern as clinician’s attitudes and activities are increasingly viewed online.
Foremost Danger of Online Social Networking
Neil Graham and Philippa Moore ( http://archive.student.bmg.com) in writing about the dangers of online social networking, identified the professional implications as the greatest concern to the medical community.
They cited a recent study in the Journal of General Medicine wherein Facebook profiles of a group of medical students in Florida were assessed to establish the effect of the intersection of personal and professional identities. It was noted that the profiles of two-thirds of the study group were available to users that were not even listed as friends. Found were some profiles publicly displaying photographs of trainee medics drinking to excess and engaging in sexual behavior, and in one photograph, posing with a dead racoon. A few students were also found to have joined seemingly sexist or racist Facebook groups. They wrote that while the impact of the private activities of a medical professional on his ability to practice is debatable, there is that danger of possible undermining of trust in the profession.
Doctors are advised by the American Medical Association to recognize that their reputation and that of the profession may be affected by their personal conduct. As a spokesman of the General Medical Council aptly said, “Medical students and doctors are entitled to a private life, and to use their time away from studying and work as they wish [they] should consider whether the images of what was fun at the time could cause embarrassment if they were accessed by patients, or the public, later. In extreme cases such images could lead to a complaint being made.”
It is acknowledged that compared to other groups in society, doctors and medical students are held to higher standards of personal conduct; that the profession comes with an expectation of a reasonable level of common sense and decency.
The Debate on the Added Value of Web 2.0 to Patient Care
Dr. Pauline Chen, in the June 11, 2009 Doctor and Patient column of the NYTimes, argued how tweeting, friending and blogging may add real value to patient care. She wrote about a patient named Eddie who she believes might have benefitted from social media, that more frequent interaction with the doctor could actually encourage a patient to adhere to a lifestyle that would be conducive to physical healing of certain diseases. Reactions to her article may be viewed on http://well.blogs.nytimes.com:
Comments from medical practitioners ranged from those vehemently against Dr. Chen’s views, to qualified agreement only under certain situations, and to endorsements. Among the comments are: that electronic media are poor substitute of meaningful human encounters; that the tweets (140 characters or less) are too limited in nature; that its use should be only for “simple things” like lab results and appointments or for support messages that would not engender long responses. To one doctor, a great benefit to both doctor and patient is the reassurance that his being available by email gives to his patients, resulting in fewer late-night calls for routine matters. One patient found Dr. Chen’s view outrageous, that in reality, he could not even get his doctor to return his phone call and yet the doctor would have time on his hands to gossip on the Internet and exchange tweets.
Doctor Blogs, Related Privacy and Other Issues
Psychiatrist Dr. Deborah Peel, founder of the group Patient Privacy Rights, think that physician blogs often get too close to the limits of patient privacy as cited by Deirdre Kennedy in (http://www.npr.org, March 13, 2008). Dr. Peel said that there is a danger that from such blogs, patients could identify themselves or that other people who know the patient, could identify the latter. Then, the patient’s employment, health insurance or other aspects of his life could get affected.
Violation of a patient’s privacy has legal consequences. Physicians could be imposed fines or imprisonment, under the federal Health Insurance Portability and Accountability Act. In some states, a patient can file a civil lawsuit when he believes that his doctor has violated his privacy.
There are some blogs, extremely candid, (e. g., “White Coat Rants,” “Cancer Doc,” and “M. D. O. D.”, which bills itself as “Random Thoughts from a Few Cantakerous American Physicians”) wherein doctors vent about such topics as reimbursement rates, difficult cases and what a “bummer” it is to have so many patients die. Dr. Peel ventures that these doctors probably need therapy, that it is very inappropriate and unprofessional to vent their frustrations in a public manner in such blogs.
Dr. Wachter, a leading expert on patient safety who writes extensively about medical mistakes , and author of a blog called “Wachter’s World,” disagrees with Dr. Peel. He argues that what Dr. Peel espouses is tantamount to prohibiting doctors from talking about their experiences with patients online, or in books, or in articles. He avers that doctors should be able to share cases, as long as facts are modified substantially.
D. IMPACT ON EDUCATORS
The traditional classroom is changing as more teachers, educators and professors are using blogs, wikis, social-networking sites, and video sharing sites to improve teaching and learning techniques. Education blogs or “edublogs” have become popular teaching tools. In the website http://www.squidoo.com/edublogs, using edublogs to teach in the following ways are suggested (modified after the Source: Edublogs.org):
- Post materials and resources - The web is a fantastic tool when it comes to distributing resources – you just upload, or copy and paste your materials to your blog and they’ll be instantly accessible by your student from school and from home. Password and plugin safety measures may be employed.
- Host online discussions - Students can simply respond to blog posts on assigned topics.
- Create a class publication - class newspapers have become easier to make with students as contributors, authors and even editors for online publication.
- Replace your newsletter - It is simple to post class information, news, events and more online.
- Get your students blogging - Operate as a hub for their work and a place where they can easily visit each other’s and your very own blogs.
- Share your lesson plans - Sharing your plans, reflections, ideas and fears with fellow educators using an edublog is a great way to develop as a teacher.
- Integrate multimedia of all descriptions - Choose the video, podcasts or slidecast you’d like to use and attach the same in your blog to improve your teaching toolbox.
- Organize, organize, organize - Through edublogs, you may organize various class and other events like sports, rehearsals for the upcoming production.
- Get feedback - Using a blog as a place for students to raise issues or , give feedback.
- Create a fully functional website - Your edublog may be used as a more interesting multimedia website, for example.
Edublogs make learning more interesting to students because it allows a participative process.
E.SOCIAL NETWORKING TIPS FOR PROFESSIONALS
On April 14, 2009, http://newsblaze.com cited business etiquette expert Barbara Pachter, author of NewRules@Work: 79 Etiquette Tips, Tools, and Techniques to Get Ahead and Stay Ahead (Prentice Hall Press) as saying that in their enthusiasm to keep up with technology, people end up not giving much thought to the content of their posts, that professionals need to remember that the Internet is not a private venue. Seven guidelines, slightly modified, are given below so that social networking would not have a negative effect on your career:
- Think before you post. Pictures and things you post are public. Even with privacy settings, your post is never entirely secure. If your post is something you do not wish your employer, client, patient, colleague or student to see, then do not post it.
- Make sure you have online presence. Always think that current and potential clients or patient, customers, business contacts, and potential employers, or students will look you up online. Your website or post or profile can influence their buying, consulting, hiring, or enrollment decisions. Things about you that you do not wish others to know, should not be included in your posts.
- Remember that your online presence is part of your professional image. Think of the image you wish to project. Your online profile creates your image. View your profile from the perspective of a potential buyer, client, patient, employer or student.
- Follow company guidelines. Refer to your company policy and guidelines handbook for guidance on the use of social networking sites, especially during company time.
- Do not post negative comments about your employer. Or customer, client, student, as the case may be. Why bite the hand that feeds you? If you have a gripe against your employer, discuss with your immediate boss or with the personnel department.
- Do not let social networking take over your life. Some people get so immersed in updating their online profiles, they forget the real world and their daily tasks.
- Remember that phone calls and in-person visits are still important parts of doing business. A phone call can be the equivalent of several Facebook or email exchanges.
Several online sources provide step-by-step instructions on privacy settings. Aside from the above-enumerated guidelines, the appropriate privacy settings would be a good start to a functional, and enjoyable social networking experience.
F.APPLICABILITY TO THE PHILIPPINE SETTING
All discussions, from Parts B through Part E of this paper are based on sources from outside the Philippines. This fact notwithstanding, parallel effects of Web 2.0 are becoming evident in the Philippines. In September 2009, there was news about a celebrity doctor in the Philippines suing a lawyer who used Facebook to call for patients to boycott her practice. Unfolding is the Hayden Kho vs. Katrina Halili case and related online video postings that show explicit sexual scenes. There is also the latest report, in November 2009 wherein actress Gina Alajar’s statements, from a supposedly private Facebook page, was aired. On the educational front, many private institutions have started employing edublogs in varying degrees. More importantly, the social networking tips for professionals in Part E are very much applicable in the here and now.
