Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

We are delighted to announce that Socially Aware has been included in the <a href="http://www.abajournal.com/magazine/article/10th_annual_blawg_100/?utm_source=internal&utm_medium=navigation&utm_campaign=navbar" target="_blank" rel="noopener">10th Annual Blawg 100</a>, a list of “100 excellent legal blogs” selected by the staff and readers of the <a href="http://www.abajournal.com/" target="_blank" rel="noopener">ABA Journal</a>, the American Bar Association’s flagship magazine.The ABA Journal’s editorial staff notes that it compiles the BLAWG 100 list as a service to its readers, “pointing them to a collection of some of the very best legal writing and commentary on the Web.”We’re honored to have been selected from among the more than four thousand legal blogs in the ABA Journal’s directory. And we’re flattered to be listed alongside many of our own favorite law blogs, such as Eric Goldman’s <a href="http://blog.ericgoldman.org/" target="_blank" rel="noopener">Technology & Marketing Law Blog</a> and Rebecca Tushnet’s <a href="http://tushnet.blogspot.com/index.html" target="_blank" rel="noopener">43(B)log</a>.We’d like to thank our many contributors to the blog and our wonderful readers.Here’s to another great year!

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Socially Aware Made the Blawg 100 Again!

We are delighted to announce that Socially Aware has been included in the 10th Annual Blawg 100, a list of “100 excellent legal blogs” selected by the staff and

Socially Aware Made the Blawg 100 Again!

2016 has been a <a href="http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm" target="_blank" rel="noopener">challenging</a> year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liability stemming from user-generated content. An unusually large number of cases this year have resulted in decisions holding that the defendant website operators were not entitled to immunity under Section 230. For example, as we’ve discussed <a href="http://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">recently</a>, in Hassel v. Bird, the California Court of Appeal held that Section 230 did not prevent the court from ordering Yelp to remove from its website allegedly defamatory reviews posted by users, even though Yelp was not a party in the underlying defamation suit.We are working on an article surveying some of the recent cases holding that Section 230 did not apply. But in the meantime, it is important to remember that Section 230 remains a powerful shield against liability and that defendants continue to wield it successfully in many cases. The Ninth Circuit’s recent decision in Kimzey v. Yelp is one such case.Kimzey arose from two negative Yelp reviews that user “Sarah K” posted in September 2011 about Douglas Kimzey’s locksmith business in the Seattle area. Sarah K’s reviews were extremely negative and rated Kimzey one out of five stars in Yelp’s multiple-choice star rating system. In all caps, she warned Yelpers that “THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY . . . CALL THIS BUSINESS AT YOUR OWN RISK.”In response, Kimzey filed a pro se complaint in the U.S. District Court for the Western District of Washington alleging that Yelp should be held liable for publishing such “Libelous Per Se statement[s]” on its website. In an apparent attempt to plead around Section 230 and the immunity afforded to website operators for liability arising from user-generated content, Kimzey asserted two arguments.Kimzey’s first argument was that Yelp created the reviews itself, by copying them from another website and reposting them on Yelp’s website. The court made quick work of this theory, noting that “threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA.” The court went on to observe that, “[w]ere it otherwise, CDA immunity could be avoided simply by reciting a common line that user-generated statements are not what they say they are” and that “it cannot be the case that the CDA and its purpose of promoting the free exchange of information and ideas over the Internet could be so casually eviscerated.”Kimzey’s second theory was that Yelp was responsible for Sarah K’s reviews because it “transformed” the reviews into its own advertisements or promotions and because Yelp served as an “author” of the one-star rating by “designing the star image and creating the color” of its star rating system. While it is well established that a website operator may lose Section 230 immunity if it makes a material contribution to the creation or development of the content at issue, here the court held that “neither of the allegedly creative actions taken by Yelp falls within [the court’s] interpretation of the terms ‘creation’ or ‘development’ of information.”Specifically, the court held that, because Yelp’s star rating system is based entirely on user input and merely “reduces this information into a single, aggregate metric,” the star ratings cannot be “anything other than user-generated data” within the scope of the Section 230 immunity. The court went on to characterize Yelp’s star rating system “as the kind of ‘neutral tool’ operating on ‘voluntary inputs’ that [the Ninth Circuit] determined did not amount to content development or creation” in the Roommates.com case. The court also cited <a href="https://en.wikipedia.org/wiki/Carafano_v._Metrosplash.com,_Inc." target="_blank" rel="noopener">Carafano v. Metrosplash</a> for the proposition that “the mere fact that an interactive computer service classifies user characteristics and collects responses to questions does not transform it into a developer of the underlying misinformation.” Given this analysis, the Ninth Circuit upheld the district court’s dismissal of Kimzey’s complaint based on Yelp’s immunity under Section 230.Kimzey represents a clean Section 230 victory for Yelp, of the kind that we took for granted before the spate of Section 230 wins for plaintiffs that we have seen this year. We will be watching closely to see how the Section 230 winds blow as we move into 2017.

istock_19693931_small-300x225.jpg

Yelp Case Shows CDA §230 Still Has Teeth

Yelp Case Shows CDA §230 Still Has Teeth

2016 has been a challenging year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liabi

The <a href="http://www.hollywoodreporter.com/thr-esq/imdb-sues-invalidate-californias-actor-age-censorship-law-946261?utm_source=Sailthru&utm_medium=email&utm_campaign=THR%27s%20Today%20in%20Entertainment_now_2016-11-11%2006:59:31_ehayden&utm_term=hollywoodreporter_tie" target="_blank" rel="noopener">Internet Movie Database (IMDb) has filed suit to overturn a law</a> that requires the popular entertainment website to remove the ages or birth dates of people in the entertainment industry upon request.<a href="https://techcrunch.com/2016/11/07/revive-vine/" target="_blank" rel="noopener">Vine might not be history</a> after all.Twitter users posted <a href="http://www.nytimes.com/2016/11/09/technology/for-election-day-chatter-twitter-ruled-social-media.html?em_pos=small&emc=edit_tu_20161109&nl=bits&nl_art=0&nlid=69264395&ref=headline&te=1&_r=1" target="_blank" rel="noopener">more than one billion election-related tweets</a> between the first presidential debate and Election Day.Facebook is testing a feature that <a href="https://techcrunch.com/2016/11/07/jobbook/" target="_blank" rel="noopener">allows company Page administrators to post job ads</a> and receive applications from candidates.People who create or encourage others <a href="http://www.out-law.com/en/articles/2016/october/use-of-derogatory-hashtags-on-social-media-might-lead-to-prosecution/" target="_blank" rel="noopener">to use “derogatory hashtags” on social media</a> could be prosecuted in England and Wales.<a href="https://techcrunch.com/2016/11/10/pinterest-finds-another-way-to-track-purchases-via-its-new-tried-it-button/" target="_blank" rel="noopener">A new “tried it” checkmark on pins</a> will allow Pinterest users to share the products and projects they’ve purchased or attempted.Did social media ads allow political campaigns <a href="http://marketingland.com/social-ads-location-targeting-can-side-step-electioneering-laws-197588" target="_blank" rel="noopener">to circumvent state laws</a> prohibiting the visible promotion of candidates within a certain distance of polling places?The Eight Circuit held that a college has <a href="http://www.startribune.com/ex-nursing-student-suffers-legal-setback-over-facebook-posts/400132521/" target="_blank" rel="noopener">the right to expel a student from its nursing program for inappropriate social media posts</a> about his classmates, including the suggestion that he would inflict on one of them a “hemopneumothorax”—a lung puncture.Law enforcement officials are increasing their <a href="http://www.ktre.com/story/33636069/east-texas-law-enforcement-use-social-media-to-help-find-missing-children" target="_blank" rel="noopener">use of social media to locate missing persons</a>.An unemployed single mother in California is <a href="http://www.latimes.com/local/lanow/la-me-ln-ceviche-selling-stockton-20161107-story.html" target="_blank" rel="noopener">facing several misdemeanor charges</a> for selling her ceviche over social media.Coming soon to a vending machine near you: <a href="https://www.cnet.com/news/snapchat-spectacles-available-today-snapbot-vending-machines/" target="_blank" rel="noopener">Snapchat Spectacles</a> (but only if you live in a densely populated area like New York or Los Angeles).Social media analytics firms claim that <a href="https://techcrunch.com/2016/11/10/social-media-did-a-better-job-at-predicting-trumps-win-than-the-polls/" target="_blank" rel="noopener">social media did a better job at predicting Trump’s win</a> than the polls.

Social Links: IMDb sues over right to post actors’ ages; Facebook tests jobs feature; Pinterest adopts “tried it” button

The Internet Movie Database (IMDb) has filed suit to overturn a law that requires the popular entertainment website to remove the ages or birth dates of people 

Social Links: IMDb sues over right to post actors’ ages; Facebook tests jobs feature; Pinterest adopts “tried it” button

Is your company prepared to respond to a data security breach? For many companies, even reading this question causes some anxiety. However, being prepared for what seems like the inevitable—a security breach—can be the difference between successfully navigating the event or not. While we still hear some companies say, “That would never happen to our company!” a significant breach can happen to any company.In light of this and the close scrutiny that the high-profile breaches reported over the past year have received, many companies have taken the opportunity to consider their preparedness and ability to respond quickly and decisively to such an incident. We have prepared for our readers who are in-house attorneys or privacy officers the following checklist highlighting some steps that companies may consider taking so that they can be better prepared in the event that a significant breach incident occurs.<ol><li> Make Friends With Your IT/IS Department. </li></ol>It is important to be familiar with your company’s risk tolerance and approach to information security in order to develop an understanding of your company’s security posture. The time to explore these issues isn’t after a breach has happened, so ask your colleagues in your company’s information technology or information security departments the basic questions (e.g., What’s DLP?) and the tough questions (e.g., Why haven’t we addressed the data security concerns raised in last year’s audit?). You would rather learn, for example, that your company does not encrypt its laptops before one is stolen.<ol start="2"><li> Have a Plan. </li></ol>Many companies have an incident response plan. If your company does, dust it off. Does it need to be updated based on the current breach environment? Would it actually be helpful in responding to a high-profile nationwide data security breach? Does it have a list of key contacts and contact information? Also, make sure you have a copy printed out in case the breach impacts your company’s electronic system. If you don’t have a plan, draft one and implement it.<ol start="3"><li> Practice. </li></ol>Although practice may not make perfect when it comes to data breach response, you do not want your response team working together for the first time in the middle of an actual high-stress incident. Gather your response team and relevant stakeholders and conduct a “fire drill” or “breach tabletop” exercise (and consider bringing your outside counsel). This will be invaluable training and an investment in your company’s preparedness.<ol start="4"><li> Decisions, Decisions, Decisions. </li></ol>Someone has to make the tough calls. A high-profile breach incident presents a series of tough calls (e.g., when will you go public, how will you respond to the media, will you offer credit monitoring and so forth). We continue to hear of incidents where there are competing views within a company about the “right” decision, and incidents where difficult decisions have to be made based on limited facts. You should give thought to who within your organization will be responsible for making the tough calls, and making sure the key decision-makers understand the broader issues that have to be considered.<ol start="5"><li> Know the Law. </li></ol>In the United States, notice of breach incidents is driven by federal and state law. There are federal breach requirements (e.g., the Gramm-Leach-Bliley Act), and there are state requirements in 51 states and jurisdictions. Needless to say, notice in a nationwide incident can be complicated. And the laws have been rapidly changing over the last several years. Someone in your company should be committed to staying abreast of the current landscape of breach-related requirements (e.g., requirements for the content of consumer notices and requirements to notify state regulators). In addition, breaches that affect individuals outside the United States are even more complicated. Be aware that the number of jurisdictions with breach-notification obligations is growing, and in many instances a “breach” includes the unauthorized disclosure of any type of personal information.<ol start="6"><li> Go Outside. </li></ol>Outside counsel who have a deep practice in this area will have worked on countless incidents both large and small, and can advise on how other companies respond to similar incidents and how regulators have reacted. This is invaluable insight when the tough calls have to be made (see item 4 above).<ol start="7"><li> Engage Vendors. </li></ol>In a significant breach incident, a company’s resources can be stretched thin. Many companies would not have the capability to produce and mail 500,000 breach letters in just a few days. Similarly, many companies are not prepared to handle dramatically increased call center volumes after an incident becomes public. There are a wide variety of vendors that can help companies respond to a breach incident, including forensic investigators, crisis communication experts and mail houses, to name a few. Consider your company’s capabilities and engage vendors before an incident occurs.<ol start="8"><li> In Case of Emergency, Call. </li></ol>The list of individuals and entities that may need to be contacted in case of a significant breach at your company may be longer than you think. For example, you may need to contact members of your response team, members of senior management, your merchant acquirer, payment card networks, a wide variety of vendors, the press, your regulators, outside counsel and others. While a comprehensive contact list may seem simple, it can reduce stress in the heat of the moment if you have one (see item 2 above).<ol start="9"><li> Consider Coverage. </li></ol>Cyberinsurance is one of the fastest growing areas of insurance today. It’s quite possible that your company already has a policy that would provide at least some coverage in the case of a data security breach. If so, the policy should be reviewed to get a sense of the breadth of the coverage and to determine whether such coverage is appropriate for your company’s needs. If your company does not have a policy, you can consider the costs and benefits of obtaining coverage. This is a risk-based decision, but one that of course needs to be thought about before a breach occurs.<ol start="10"><li> Don’t Delay. </li></ol>Although you can’t control whether a breach occurs, you can control how your company responds. Many companies will find that there is more that they can do to prepare for a potential breach event. In light of the public, regulatory and internal scrutiny that a high-profile breach brings, you should not delay in considering your company’s preparedness to respond to such an event.Concluding ThoughtsUnfortunately, data security breaches have become as inevitable as death and taxes; accordingly, no company can afford to be unprepared for a breach incident when it occurs. Although our pre-breach checklist above isn’t intended to be exhaustive, it should provide a helpful starting point for companies in thinking about the unthinkable.

taylor_nathan_blog_150x150.png

taylor_nathan_common_640x280.jpg

taylor_nathan_heroretina_2700x1160.jpg

taylor_nathan_mobileretina_750x1040.jpg

taylor_nathan_social_600x600.jpg

Recognized as an authority on financial privacy issues, Nathan helps financial institutions and other companies develop practical solutions for complying with privacy and data security laws. In partic

Nathan D. Taylor

Nathan Taylor

gettyimages-488221686_small-300x167-1.jpg

Preparing for a Data Security Breach: Ten Important Steps to Take

Preparing for a Data Security Breach: Ten Important Steps to Take

Is your company prepared to respond to a data security breach? For many companies, even reading this question causes some anxiety. However, being prepared for w

The latest issue of our Socially Aware newsletter is now available <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt5dbd95633a7b6adb/62730e307198441d81b3a28f/161107-socially-aware.pdf" target="_blank" rel="noopener">here</a>.In this edition, we provide five tips for reducing potential liability exposure in seeking to exploit user-generated content; we examine a Ninth Circuit decision highlighting the control that social media platform operators have over the content and data that users post to those platforms; we discuss five questions that companies should ask themselves to help prepare for a ransomware attack; we explore a controversial California court decision that narrows an important liability safe harbor for website operators; we review a federal court decision that illustrates the importance of securing clear and affirmative assent to electronic contracts; we take a look at some recent enforcement actions that indicate a shift toward requiring clearer and potentially more burdensome disclosures from companies engaged in interest-based advertising; and  we examine a recent Northern District of California decision holding that a mobile app developer was not be liable under the Telephone Consumer Protection Act for a text initiated by one of the app’s users.All this—plus an infographic illustrating the impact of incorporating user-generated content in marketing campaigns.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt5dbd95633a7b6adb/62730e307198441d81b3a28f/161107-socially-aware.pdf" target="_blank" rel="noopener">newsletter.</a>

capture-1-1.jpg

Now Available: The November Issue of Our Socially Aware Newsletter

Now Available: The November Issue of Our Socially Aware Newsletter

The latest issue of our Socially Aware newsletter is now available here. In this edition, we provide five tips for reducing potential liability exposure in seek

Because it bases its assessments on job title, location and industry, LinkedIn’s new Salary feature might be more accurate than are other online compensation estimation tools.States are trying to pass laws that balance bereaved people’s desire to access their deceased loved ones’ social media accounts with the privacy interests of the account holders and the people with whom they corresponded. Without such laws, access to a deceased person’s digital assets might depend on the various social media platforms’ terms of use.In lawsuits, social media has occasionally made it easier to serve process on adverse parties, but it has also made it more difficult to ensure that jurors remain unbiased.A UK company wants to set car insurance premiums using an algorithm that analyzes car owners’ Facebook posts for pertinent personality traits?! The plan likely won’t go far; it violates Facebook’s platform policy.Kenya deported a registered refugee for posting to social media his support of the U.N. secretary-general’s firing of a Kenyan commander of a peacekeeping mission in South Sudan, the refugee’s native country.Thinking of posting a photo of yourself in the voting booth on Tuesday? Not so fast. In many states it’s illegal to share on social media photos of completed ballots and photos of yourself inside a voting booth. Courts all over the U.S. are hearing challenges to these so-called “ballot selfie” laws.Does a lawyer violate ethics rules by purchasing the names of competing lawyers or law firms as keywords that improve the purchasing lawyer’s own rank in Google search results?In the three years since its launch, an app called Scholly, which matches students with a personalized list of scholarships, has been downloaded over a million times. Here’s some advice for other social entrepreneurs from the company’s 25-year-old founder and CEO.Some researchers believe the likes, status updates and photos posted to social media platforms will someday be the source material for breakthroughs in the field of psychiatry.A UK solicitor was fined by a professional conduct regulator for posting a series of “unprofessional and offensive” tweets bragging about his victory over vulnerable adversaries.

Social Links: LinkedIn’s new feature estimates salaries; states grapple with digital-asset-inheritance laws; insurance company wants to base rates on applicants’ Facebook posts

Because it bases its assessments on job title, location and industry, LinkedIn’s new Salary feature might be more accurate than are other online compensation est

Social Links: LinkedIn’s new feature estimates salaries; states grapple with digital-asset-inheritance laws; insurance company wants to base rates on applicants’ Facebook posts

As part of the European Commission’s Digital Single Market initiative, the European Commission has published a draft Regulation aimed at preventing traders from discriminating against customers located in other EU Member States by denying those customers access to e-commerce sites, or by redirecting those customers to websites that offer inferior goods or sales conditions—a practice known as geo-blocking. The proposed new rules will benefit both consumers and businesses that purchase goods or services within the EU (excluding resellers).The European Commission believes that geo-blocking and discriminatory practices undermine online shopping and cross-border sales within the EU.The Regulation, which must still undergo review by the European Parliament and the Council of the EU, may change and is expected to be in force in 2017 (except the ban on discriminating against customers of electronically supplied services, which is expected to be effective beginning July 2018). When it is adopted, the Regulation will automatically take effect in all Member States without each Member State having to implement it into national law.The Traders to Whom the Regulation Applies The Regulation will apply to all traders, (including small- and medium-sized enterprises and micro-enterprises) operating in the EU. Small businesses that fall under a national VAT threshold, however, will be exempt from certain provisions. The Regulation will also apply to traders  established outside the EU to the extent that they sell or intend to sell goods or services to customers in the EU.  The Prohibition Against Discrimination Traders must not discriminate against customers on the basis of their nationality, place of residence or place of establishment when selling (or seeking to sell) goods or services:<ul><li>in a Member State other than the Member State in which the customer resides or has its establishment;</li></ul><ul><li>in the same Member State, but the customer is a national of another Member State; or</li></ul><ul><li>in a Member State in which the customer is temporarily located without residing in that Member State or having a place of establishment there.</li></ul>The Prohibition Against Blocking A trader operating an online interface (such as a website or app) will not be permitted, through technology measures or otherwise, to block or limit customers’ access for reasons related to the customer’s nationality, or place of residence or establishment. In addition, a trader will not be permitted to redirect a customer from one website to an alternative website without the customer’s consent. And, if a customer consents to the redirection, the customer must still be able to access the original website.The Prohibition Against Different Terms, Goods or Services A trader may not apply different terms and conditions to a customer based on that customer’s nationality, residence or place of establishment. This ban applies to:<ul><li>sales of goods where the trader is based in a different Member State than the customer;</li></ul><ul><li>all electronically supplied services (except services that involve providing access to copyright-protected content, as discussed below), e.g., cloud services and web hosting; and</li></ul><ul><li>offline services provided at the trader’s premises or in a location where the trader operates, where such site is in a different Member State to where the customer is a national, is resident or is established.</li></ul>Note that the Regulation does not require traders to deliver goods cross-border, however. As long as it requires the same thing of all of its customers, a merchant may require a foreign customer to pick up goods in the Member State where the merchant is located, or in another Member State to which the merchant delivers.The Prohibition Against Different Payment Conditions A trader may not apply different payment conditions to sales of goods or services within the EU, subject to certain criteria. However, a trader will still be free to decide which payment means it accepts from customers. And the Regulation does not address pricing, so traders will still be free to set prices in a non-discriminatory manner.Exceptions To the relief of content providers across the EU, the Regulation does not apply to copyrighted content. This is a departure from the Commission’s original plans, and means that digital content providers (e.g., providers of audio-visual media, e-books, gaming apps and software) can continue to licence their content on a territorial basis (subject to portability obligations under the draft Regulation on cross-border portability and obligations under the proposed amendments to the Audiovisual Media Service Directive).The Regulation also does not apply to financial services, transportation services, health care services or gambling.There are also specific exceptions to the discrimination obligations, where required, to comply with applicable EU or Member State laws (e.g., applicable laws regarding the protection of children), but any such restrictions must be “precisely justified.”The Impact of Brexit The UK voted to leave the EU on 23 June 2016. However, until the UK government formally provides an Article 50 notice, the UK remains part of the EU and subject to EU law and regulation. Accordingly, if this Regulation comes into force in 2017, it will apply to the UK because it is directly applicable in all EU Member States. Whether or not the law will continue to apply post-Brexit will depend on the Brexit model that the UK government adopts, which is not yet clear. It seems likely that this sort of law is one which the UK government would positively want to encourage—or at least the UK government would need to find some way to agree mutual recognition between the EU and the UK, because if the law doesn’t apply to the UK, then it would mean that EU businesses could discriminate against UK customers.What Traders Should Do NowTraders that will be affected by the proposed new law should start reviewing the technical features of their platforms, as well as their terms and conditions, including their payment terms, to identify whether they discriminate against customers based on their nationality, place of residence or place of establishment. Traders should also consider what changes their platforms and terms will have to undergo to ensure compliance with the new law so that, when the proposed law is adopted, they will have started to undertake the necessary preparations.

istock_23639835_small-1.jpg

European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers

European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers