Social media – the Internet-based communication channels such as Facebook, Twitter, and infinite blogs, through which users keep in touch, learn about news, and express opinions – has become ubiquitous in our daily lives. In recent years, social media has also become increasingly present in litigation. It can provide evidence of illegal conduct; facilitate notice to class members; offer uniquely candid consumer perceptions; among many more uses surely yet to be discovered.
This article addresses these and other ways social media has been and can be used in class litigation. First, it provides some history and data on social media. Next, it discusses specific uses of social media, including class cases in which it has been used. Finally, it identifies issues to consider when using social media in litigation.
Social Media Background
Social media, in its basic form, has existed for about twenty years. The first website enabling users to upload profiles and become virtual “friends,” called “Six Degrees,” started in 1997. Social media as we know it today – Facebook, Twitter, etc. – emerged in the early 2000s. Since then, social media has grown rapidly. In 2005 only five percent of American adults used it; by 2016, 69 percent did. By January 2017, more than a third of the world's population actively used social media. Every sixty seconds, users generate 3.3 million Facebook posts; 448,800 Twitter tweets; 66,000 Instagram photos; and 1,400 blog posts. All this communication provides fertile ground for use in litigation.
Uses of Social Media in Class Action Cases
Evidence of Conduct
Statements made on social media can indicate illegal conduct, and thus provide the factual basis for a class action case. In In Re: Disposable Contact Lens Antitrust Litigation,  a class of consumers sued contact lens manufacturers and distributors for an alleged conspiracy to fix prices. In June 2016, the Middle District of Florida denied defendants’ motion to dismiss, largely based on allegations of statements on social media. For example, plaintiffs quoted posts by eye care professionals describing defendant Alcon’s request that they provide written consent to prices, and stating that the eye care professionals “inform[ed] Alcon’s sales representatives about potential violations and request[ed] that Alcon take action.” The court held that these posts sufficiently demonstrated conspiracy, and denied defendants’ motion to dismiss. 
Social media can also be an effective means of providing notice to class members. In Pollard v. Remington Arms, a 2013 deceptive trade practices class action, the court described social media as a “lynchpin” of the ultimately-approved settlement notice plan. The initial notice plan consisted primarily of traditional methods such as U.S. Mail and print ads, plus just “some Facebook advertising.” It resulted in “an appalling claims rate,” so the court ordered the parties to develop a supplemental plan. The inverse of the initial plan, the supplement had as its main prong “a targeted social media campaign,” and more traditional forms of notice were secondary. The court approved the supplemental plan. In its decision granting final approval of the settlement, it extolled the use of social media to provide notice:
One of the lynchpins of the supplemental notice utilized by the parties was their targeted social media campaign. Through this method of notice, the notice reached more than four million individuals, and the advertisements were clicked more than 375,000 times. Given the popularity of social media in the United States, the use of targeted social media to notify class members was yet another reasonable component of the notice plan, especially when combined with all other forms and methods of notice utilized in this matter.
The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has also acknowledged the benefits of electronic notice, in its proposed amendments to Federal Rule of Civil Procedure 23. Currently, Rule 23(c)(2)(B) requires a class certified under Rule 23(b)(3) to be provided “the best notice that is practicable under the circumstances” – but does not identify specific acceptable methods of notice. Since the Supreme Court’s 1974 decision in Eisen v. Carlisle & Jacquelin, courts have traditionally interpreted the rule to require at least notice by U.S. mail. Now, the Committee proposes clarifying that “[t]he notice may be by United States mail, electronic means, or other appropriate means.” In its note explaining the amendment, the Committee states: “other forms of communication [besides U.S. mail] may be more reliable and important to many. Courts and counsel have begun to employ new technology to make notice more effective, and sometimes less costly. Because there is no reason to expect that technological change will halt soon, courts giving notice under this rule should consider current technology . . . .” If approved, the proposed amendment takes effect December 1, 2018.
Social media captures the raw, contemporaneous thoughts of consumers that can be critical to commercial litigation, and that are unavailable in such candid form in any other context. Traditionally, such data has been sought through consumer surveys. But as the District of Delaware observed in QVC Inc. v. Your Vitamins Inc., a 2010 false advertising case (not class), social media may in fact “be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) [or services or events] at issue[.]” For this reason, social media can be uniquely useful, not only as evidence to be offered in litigation on such issues as consumer perceptions of products, brands, and markets, or how they have been affected by competitive conduct (assuming authentication and other evidentiary requirements can be met, as discussed below), but also for preliminary assessment of a potential class claim, by running searches to provide a snapshot of when, where, how often, and to what effect conduct has occurred, thus whether a class claim is viable. Similarly, social media can be used to demonstrate or refute the satisfaction of class certification requirements, such as numerosity and commonality.
Issues to Consider When Using Social Media in Litigation
Social Media as a Supplement
At least until courts gain more comfort with the use of social media in litigation, it should be used as a supplement to, rather than a replacement for, more traditional methods. In Pollard v. Remington Arms, after the court praised social media as a “lynchpin” of the class notice plan, it reaffirmed the importance of including more traditional forms of notice: “[T]he use of targeted social media to notify class members was yet another reasonable component of the notice plan, especially when combined with all other forms and methods of notice utilized in this matter.” Likewise, the Committee on Rules of Practice and Procedure cautions, in its proposed amendment to Rule 23, “to keep in mind that a significant portion of class members in certain cases may have limited or no access to email or the Internet. Instead of preferring any one means of notice, therefore, courts and counsel should focus on the means most likely to be effective in the case before the court.”
In QVC, after the court recognized the potentially superior reliability of social media versus consumer surveys, it found that the social media evidence offered there – about 10 blog posts – failed to demonstrate confusion. The court appeared to base this decision on the paucity of the posts (only about 10), plus the fact that they were the sole evidence on confusion, noting: “The court is not presented with expert testimony or consumer surveys at this time.” Thus, the posts may have sufficed if offered in conjunction with expert or survey evidence.
Possibly due to the relative novelty of social media in commercial litigation, courts have expressed skepticism regarding its authenticity. In its 2011 decision affirming QVC, the Third Circuit noted: “The use of false identities in Internet forums is now a well-known tactic for attacking corporate rivals . . . . [E]ven if a poster is genuine and making a comment in good faith, whether he or she would fall in to the universe of consumers whose opinions are relevant (i.e., those who are or potentially might be purchasers of the products in question) often cannot be known.” Similarly, in Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., a 2014 trademark infringement case, the Central District of California rejected the authentication of screen shots from Facebook, warning: “Anyone can put anything on the internet.”
More recently, however – at least in criminal contexts – courts have been more willing to find social media evidence properly authenticated, using the same the same methods available for traditional evidence. In State v. Hannah, a 2016 New Jersey case, the defendant appealed the admission of a Twitter post (tweet) that included her picture and Twitter “handle,” and was substantively consistent with the evidence in the case, but that she claimed she did not write.  Her argument echoed the skepticism cited above, that because of “the potential for abuse and manipulation of a social networking site . . . images from such a site require greater scrutiny than letters and other paper records.” The appellate court rejected this argument, explaining:
[A]lthough rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally adequate to the task. . . . Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication[.]
Under those rules, the tweet was deemed properly authenticated.
Similarly, in United States v. Browne, the defendant appealed the admission of Facebook “chats” between him and his victims, on the ground that they were not properly authenticated because no witness identified them on the stand. The Third Circuit rejected this argument, finding the chats properly authenticated through the “conventional” means of extrinsic evidence, including a certificate of authenticity provided by Facebook. Like the New Jersey court, the Third Circuit acknowledged the “challenges” of social media evidence, including “the great ease with which a social media account may be falsified[.]” However, it held that “it is no less proper to consider a wide range of evidence for the authentication of social media records than it is for more traditional documentary evidence[,]” citing several Courts of Appeals – including the Second Circuit – that agree.
Social media can be invaluable as a litigation tool, but it is only as valuable as the care and efficacy with which it is collected and used. To ensure maximum integrity and reliability, it is best to conduct those processes under the guidance of an experienced social media expert.
For example, it is critical to obtain a “clean” pool of evidence, that excludes irrelevant and unauthentic posts, such as bot and commercial posts. This can be achieved through custom algorithms and refined metrics that provide combined analyses of author, posting behavior, and content. In addition, relevant posts must be captured and stored appropriately, with a clear chain of custody and other indicia of authenticity, so they will available for litigation and admissibility can be demonstrated. Finally, because social media tends to take a casual, conversational tone, it is critical to accurately determine an author’s substantive intent. While automated tools are available for this purpose, the most reliable method is manual review by an experienced analyst, who reads posts in context to identify sarcasm, humor, slang, misspellings, and synonyms that can generate false positives or mislead sentiment analysis algorithms.
Social media is here to stay – not just in our daily lives, but also, it appears, in litigation. Its potential uses are endless, as are the legal issues it is likely to raise. As courts and parties navigate this new territory, the rules of the road will continue to develop. As that occurs, it is critical for parties to take all available steps to ensure they use these new forms as effectively and reliably as possible.
Kerin E. Coughlin is an Assistant Professor of Law and Paralegal Studies at the City University of New York, NYC College of Technology, and a former antitrust and commercial litigator. She is also a Senior Consultant with social media analyst firm Voluble Insights, a division of Global Business Experts Group, a business litigation consultant.
 Felim McGrath, Top 10 Reasons for Using Social Media, Global Web Index (June 7, 2017), http://blog.globalwebindex.net/chart-of-the-day/social-media/ (last visited July 24, 2017); Social Media, http://whatis.techtarget.com/definition/social-media (last visited July 24, 2017).
 Drew Hendricks, Complete History of Social Media: Then and Now, Small Business Trends (May 8, 2013), https://smallbiztrends.com/2013/05/the-complete-history-of-social-media-infographic.html (last visited June 24, 2017).
 See, e.g., Nicholas Carlson, At Last – The Full Story of How Facebook Was Founded, Business Insider (Mar. 5, 2010), http://www.businessinsider.com/how-facebook-was-founded-2010-3 (last visited July 18, 2017); Nicholas Carlson, The Real History of Twitter, Business Insider (Apr. 13, 2011), http://www.businessinsider.com/how-twitter-was-founded-2011-4 (last visited July 18, 2017); A Brief History of Blogging, WebdesignerDepot (Mar. 14, 2011), https://www.webdesignerdepot.com/2011/03/a-brief-history-of-blogging/ (last visited July 18, 2017).
 Social Media Fact Sheet, Pew Research Center (Jan. 12, 2017), http://www.pewinternet.org/fact-sheet/social-media/ (last visited July 17, 2017).
 Simon Kemp, Digital in 2017: Global Overview, We Are Social (Jan. 24, 2017), https://wearesocial.com/special-reports/digital-in-2017-global-overview (last visited June 24, 2017).
 What happens online in 60 seconds, Smart Insights, http://www.smartinsights.com/internet-marketing-statistics/happens-online-60-seconds/attachment/what-happens-online-in-60-seconds/ (last visited July 24, 2017); Nick Schaferhoff, 13 Surprising Wordpress Statistics (Oct. 18, 2016), https://torquemag.io/2016/10/13-surprising-wordpress-statistics-updated-2016/ (last visited July 24, 2017); Puranjay Singh, 2 Million Blog Posts Are Written Every Day, Here’s How You Can Stand Out (May 18, 2015), http://www.marketingprofs.com/articles/2015/27698/2-million-blog-posts-are-written-every-day-heres-how-you-can-stand-out (last visited July 24, 2017).
 215 F. Supp. 3d 1272 (M.D. Fl. 2016).
 Id. at 1284.
 Id. at 1306; cf. Nestle Purina Petcare Co. v. Blue Buffalo Co. Ltd., No. 4:14 CV 859 RWS, 2015 WL 1782661 (E.D. Mo. Apr. 20, 2015) (Purina’s posts on Facebook and Twitter about competitor Blue Buffalo supported Blue Buffalo’s false advertising and defamation claims).
 Case No. 4:13-CV-00086-ODS, 2017 WL 991071 (W.D. Mo. Mar. 14, 2017).
 Id. at *11.
 Id. at *2 (emphasis added).
 Id. at *2, *7.
 Id. at *7.
 Id. at *11 (emphasis added; citation to record omitted).
 Comm. on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure (Aug. 2016), available at http://www.uscourts.gov/sites/default/files/preliminary_draft_2016-07-01.pdf (“Proposed amendments”).
 Proposed amendments, Fed. R. Civ. P. 23 note at 218.
 Id. at 211-12 (emphasis added).
 Id. at 218-19 (emphasis added); see also Elizabeth M.C. Scheibel, #rule23 #classaction #notice, 42 Mitchell Hamline L. Rev. 1331 (2016) (arguing that Rule 23(c)(2)(B) and constitutional due process require use of social media and other newer communication technology to provide notice in most cases).
 Proposed amendments at 4.
 714 F. Supp. 2d 291, 302 n.19 (D. Del. 2010), aff’d, 439 Fed. Appx. 165 (3d Cir. 2011).
 Pollard, 2017 WL 991071 at *11.
 Proposed amendments, Fed. R. Civ. P. 23 note at 219.
 QVC, 714 F. Supp. 2d at 301-02.
 Id. at 301.
 QVC Inc. v. Your Vitamins Inc., 439 Fed. Appx. 165, 168-69 (3d Cir. 2011) (citations omitted).
 57 F. Supp. 3d 1203, 1213 n.5 (C.D. Cal. 2014) (quoting Internet Specialties W., Inc. v. ISPWest, CV 05–3296 FMC AJWX, 2006 WL 4568796 (C.D. Cal. Sept. 19, 2006)).
 State v. Hannah, 151 A.3d 99 (N.J. Super. Ct. 2016).
 Id. at 105 (quoting Griffin v. State, 419 Md. 343, 423-24 (2011)) (internal quotation marks and alterations omitted).
 Id. at 106 (quoting Tienda v. State, 358 S.W.3d 663, 638-39 (Tex. Crim. App. 2012), and citing N.J.R.E. 901).
 Id. at 107 (citing “[o]ther courts [that] have admitted tweets applying their similar authentication standard”).
 834 F.3d 403 (3d Cir. 2016).
 Id. at 411-12 (citing Fed. R. Evid. 901(b)), 413-14 (describing extrinsic evidence).
 Id. at 412.
 Id. at 413 (citing, inter alia, United States v. Vayner, 769 F.3d 125 (2d Cir. 2014)).
A Sea(gate) Change for Patent Infringement Cases : U.S. Supreme Court Relaxes the Standard for Awarding "Enhanced Damages"
On June 13th the United States Supreme Court issued a unanimous decision in Halo Electronivs v. Pulse Electronics (consolidated with Stryker v. Simmer) by which standards for awarding enhanced damages were relaxed in patent litigation. ICR Law Center's International Research Fellow Kerin Coughlin (Professor, NYC College of Technology; Consultant, Global Business Experts Group) has provided a introductory article for this momentous decision for the benefit of the ICR Law Center's members. Please see the attached article for a detailed overview of the case. A short summary of the article follows:
" The US Supreme Court's decision in Halo repealed the standards for enhanced damages (under Article 284 of the Federal Patent Act) that were established by In re Seagate Techonology, LLC (2007) in the Federal Circuit Court. Seagate held that enhanced damages were only appropriate for "willful infringement", and that "to establish willful infringement, a patentee must show by clear and convincing evidence that the infrinfer acted despite an objectively high likelihood that its actions constituted infringment of a valid patent". The defendant could avoid enhanced damages if it had raised a "reasonable" defense at trial. The defense need not have been successful, so even if the defendant was found guilty of infringement, it would nonetheless be exempt from enahanced damages if it had raised a defense that "was not objectively baseless, or a sham."
The Halo decision, however, overruled the Seagate standards noting that they required undue showing on the part of patent holders. Going forward, a relaxed standard would be applied that required the courts to (1) consider infringer's state of mind in determining whether their actions were willful, (2) not allow a merely "reasonable" defense to exonerate willful conduct, and (3) apply the lower standard of preponderance of evidence to enhanced damages inquiry.
The full impact of the Halo judgment will need to be shown through the decisions of lower courts. But by relaxing previous standards that restricted enhanced damages, patent infringement suits raised with enahanced damages in mind are expected to rise, and corporations should be sufficiently prepared in advance. All parties in patent litigation should consider retaining experts to opine on the effects of the alleged infringement. Also, foremost, all patent-related businesses should seek preventive legal counseling to ensure their day-to-day practices raise no potential infringement liability.
Korea University School of Law and the ICR Law Center hosts a lecture on US Copyright Law by Professor Jane Ginsburg of Columbia University Law School.
Professor Ginsburg is a world renowned researcher in the field of Copyright Law and Intellectual Property Rights. She and her mother, U.S. Supreme Court Justice Ruth Bader Ginsburg, are visiting Korea on the invitation of the Supreme Court of Korea and the U.S. Embassy. The ICR Law Center has been able to arrange this lecture with the cooperation of those two institutions and Columbia University Law School.
At this lecture, Professor Ginsburg will discuss recent trends and forecasts of Copyright issues that are growing more significant due to the internet and globalization.
She will be focusing on copyright infringement and fair use in relation to photography and pictures, a controversial issue in Korea.
We are hoping academics, practitioners and students will have a chance to frankly discuss these issues with Professor Ginsburg.
We have arranged a simple teatime after the lecture so that the audience will have a chance to personally meet and network with Professor Ginsburg and representatives from the U.S. Embassy.
[Seminar]ICR Law Center's Drug Linkage System Seminar
The ICR center has held a seminar on “Current issues of the Drug Approval-Patent Linkage System” in June 9, 2015.
It was a meaningful opportunity to discuss Korea’s current Drug Linkage System with experts from each field, regarding related policy implementation and future approach for the new system to settle down.
[Seminar]Comparative Analysis of Korean, Chinese and U.S Approaches to the NPEs
No topic has drawn more attention at the intersection between competition law and intellectual property law than Non-Practicing Entities (NPEs). Recently, the KFTC announced that it will revise its IPR guidelines and promulgate a new chapter on NPEs within 2014. This revision is expected to be the first official guidelines issued by the competition authority. The US DOJ and the FTC jointly held a workshop on Patent Assertion Entities in 2012, and the FTC recently began the FTC Act section 6(b) study to gather empirical data concerning the impact of PAE activity on innovation and competition. SAIC is promulgating its IPR rules and NDRC has shown a significant interest in the NPE issues. In this situation, the KFTC’s revision of IPR guidelines concerning NPEs is likely to work as a tipping point with regard to the competition law approach to the NPEs. Against this background, the ICR Law Center will hold a seminar, named “Comparative Analysis of Korean, Chinese and U.S Approaches to the NPEs”. This seminar features prominent academics and practitioners from who will provide views of the respective jurisdictions and also features distinguished panels of competition law and intellectual property law professionals.
· Date : Friday, November 21st, 2014 2:00 pm – 5:30 pm
[Seminar] Seeking FTC’s Processes in its Direction of Development
The ICR Center is carrying out a special seminar series under the theme of “Seeking FTC’s Processes in its Direction of Development.” The purpose of this seminar series is to take part in the Korea Fair Trade Commission’s effort of reforming procedure policies.
“Validity of Adopting a 3-step Procedure in KFTC Litigation” is the second part of our seminar series. The First seminar, “Background of Naver-Daum Consent Resolution” was held in February.
Experts from the academia, fields, and government agencies took part in the seminar and exchanged in-depth ideas regarding the subject.
Grand Topic: “Seeking FTC’s Processes in its Direction of Development.”
Time: 2014. 6. 19(Thur) 13:00-18:00
Venue: Korea University CJ Law Building Veritas Hall
Subject: Validity of Adopting a 3-step Procedure in KFTC Litigation
[International conference] Recent Trends of IT Industry Restructuring Worldwide & Regulatory Reactions of Korea and China
Last September The ICR Center and Economic Law Research Center of Renmin University China have co-established China-Korea Market & Regulation Law Center(MRLC)
MRLC was founded with a purpose of providing a platform for the international legal community to share ideas, expertise, and comparative experiences with an emphasis on the Competition laws, Intellectual Property Rights laws and other related economic regulations laws of China and Korea.
As a first step, MRLC is holding an international conference regarding "Recent Trends of IT Industry Restructuring Worldwide & Regulatory Reactions of Korea and China" in Beijing on May 24th.
-Time: 2014 May 24th (Sat.)
-Venue: Beijing Empark Hotel
-Host: China-Korea Market & Regulation Law Center (MRLC)
-Sponsor: Center for China Competition Law and Policy (Shanghai Jiao ong University)
9:00 - 9:30 Opening Remark
10:00 - 11:00 Session I: Regulatory Reactions in China
- Presentation 1: Representative from SAIC
- Presentation 2: Representative from MITT
- Presentation 3: Wang, Xian Lin (Sanghai Jia Tong Univ.)
- Discussion : Guo, He (Renmin Univ.)
11:00 -12:00 Session II: Regulatory Reactions in Korea
[Seminar] ICR Center-Korean Competition Law Association-SNU Center for Competition Law holds a Seminar.
The ICR Center is holding an academic seminar with the Korean Competition Law Association and the SNU Center for Competition Law regarding "International Trend on Private Enforcement of Competition Law and Korea's Developmental Direction."
Time and Date: Nov 1(Fri), 14:00-18:00
Venue: Korea University CJ Law Building Veritas Hall
Sponsor: Korea University ICR Center - Korean Competition Law Association - SNU Center for Competition Law
13:30~14:00 Registration and Greetings
14:00~14:10 Opening Remark
15:40~16:00 Coffee Break
17:00~18:00 Panel Discussions & Free Discussion
2012 ICR Law Center Special Seminar Series, the 2nd Seminar : Tri-polar Relationship: Innovation, Competition & Patent
2012 ICR Law Center Special Seminar Series
Implications of Samsung-Apple Patent Disputes to Patent System