Twitter Jitters

Here is some information to pass on to clients or incorporate into your drafting of iron-clad agreements.

Turns out that an ever-increasing number of entertainment deals now include contract language that is expressly intended to curb the use of social media by the other contracting party. According to an article in today's Hollywood Reporter, the goal of this language is to plug "leaks of disparaging or confidential information about productions via the likes of Twitter, Facebook and YouTube."

According to the article, Disney has used such a clause to forbid confidentiality breaches on Facebook, Twitter, and "any other interactive social network or personal blog," and DreamWorks has one that prohibits the making of any statement via "a social networking site, blog or other Internet-type site" prior to the studio's own public release of the information. Another studio agreement is broadly drafted to prohibit commentary on "all platforms, including voicemails, blogs, Internet sites, chat or news rooms, podcasts or any online forum," and at least one talent deal referenced in the article contains a nondisparagement provision prohibiting the actor from "bashing any element of a production with social media."

This once again highlights the potential for both positive and damaging information (truthful or otherwise) being disseminated via social media. It also points out the potential hazard this new avenue of expression poses for our clients, and suggests some steps we may take to protect them. In short, while the Internet has given a voice to millions, it has also given them an audience.

Eliminating the traditional "gate keepers" to the public dissemination of information can be great or it can be problematic. As lawyers working in the Internet space, we need to be aware of this, and find ways to shield our clients from the potential dangers. Because of this, we should consider following the lead of the networks and studios by drafting Internet/social media-specific confidentiality clauses in all appropriate agreements. (NDAs, employment agreements, IP licenses and settlement agreements come immediately to mind). If you're thinking, "doesn't the confidentiality clause I currently use already cover this?", the answer is "maybe." But as those who litigate contracts know, sometimes having the additional, highly specific provision is better. California has a statute that says the specific controls over the general, and I suspect other states have something similar. So if we want to expressly prohibit or limit specific conduct -- such as the on line bad-mouthing of our clients -- it is better to take the lawyerly "belt and suspenders" approach.

Which reminds me: I once saw a man who was actually wearing a belt and suspenders. I don't think he was a lawyer, but maybe he should have been.


Jonathan Pink is a commercial litigator with a specialty in high-stakes trademark, trade dress, copyright, patent and trade secret disputes. His clients include companies in industries ranging from media to manufacturing, software to soft drinks. He has successfully represented many of the biggest names in the automotive and motorcycle aftermarket parts industries (including B&M Racing & Performance Products, Hurst Shifters, McLeod Clutches, and Baron Custom Accessories), and has extensive experience litigating claims for breach of contract, fraud, unfair practices, trade libel and a broad spectrum of intellectual property matters in state and federal courts, and before the United States Trademark Trial and Appeal Board. He is resident in Bryan Cave's Irvine (Orange County) and Los Angeles offices.