Free for all: be wary what you’re posting

Confidentiality is said to be the defining principle of the solicitor-client relationship. Clients must feel they can disclose any relevant information to their solicitor without it becoming public. Solicitors need all the relevant facts from their clients, to give them the best advice. The duty of confidentiality is owed to both former and current clients: it even continues after the client’s death.

The confidentiality principle has withstood change, from quills and parchment to computers, but its boundaries are being put to the test by the internet. There is a tension between the client’s aspiration to confidentiality and terms of use applied to ‘free’ communication products used by clients. Often the rights asserted by the providers over the information that clients transmit are much wider than clients realise and could cover solicitor/client material.

Without singling out Gmail and Hotmail, their terms of service are probably representative and seem wide enough to allow access to any content, whether solicitor/client or otherwise. Google’s terms say: “When you upload or otherwise submit content to our services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works … communicate, publish, publicly perform, publicly display and distribute such content”.

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Hotmail’s say “by posting, uploading, inputting, providing or submitting your submission you are granting Microsoft, its affiliated companies and necessary sublicensees permission to use your submission in connection with the operation of their internet businesses (including, without limitation, all Microsoft services), including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your submission; to publish your name in connection with your Submission; and the right to sublicense such rights to any supplier of the services”.

Social networks depend on the willingness of users to share personal information in a way that current and older generations of legal professionals are not attuned to. No-one would conduct legal business over a social network, the point is that while solicitors are subject to a duty of confidentiality affecting all information about their clients, the same clients may be disseminating their personal, family, creative and business information on the likes of Facebook (as an example only). Lawyers advising on intellectual property matters might ponder Facebook’s statement of rights and responsibilities: “For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP license). This license ends when you delete your IP content or your account, unless your content has been shared with others, and they have not deleted it.” The qualification “subject to your privacy and application settings” presupposes that a Facebook user knows how to adjust them.

Another area in which the boundaries of solicitor/client confidentiality are blurring is remote storage. Services such as Dropbox (again, only as an example) are ideal for files that are too big to email. Clients routinely send solicitors emails that contain a link to a Dropbox page where the solicitor will find the document(s) the client wishes to be read or worked on. Dropbox uses 256-bit encryption and disavows ownership in the content of your files, but its privacy policy also says: “We may disclose, to parties outside Dropbox, files stored in your Dropbox and information about you that we collect … ”. So Dropbox can make a judgment about handing over your files, and will remove all its encryption if it does so.

‘Free’ internet services often have hidden costs. The provider makes a profit by promoting its other products, by targeting advertising based on your content, or by data mining. Twitter has signed a contract whereby two years of tweets can be sold for data mining.

Information sharing seems to be becoming a default lifestyle so it is interesting to consider whether solicitors ought to remain subject to an unflinching duty of confidentiality, especially as the principals of a new alternative business structure law firm may not necessarily all be solicitors.

l Paul Motion is a partner with bto solicitors in Edinburgh. The views expressed are his own.