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.

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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.

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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.

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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.

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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

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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.

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Lawrence W. Gallick

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.

Social Links: Going Back to Cali

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A court in the Southern District of Ohio has issued a preliminary injunction against enforcement of the Social Media Parental Notification Act, an Ohio law that would require social media platforms to obtain parental consent for users under 16. NetChoice LLC, an industry group whose membership includes a number of large social media companies, challenged the legislation on behalf of its members and their users.The Act would impose age verification measures on social media platforms and require parental consent for users under the age of 16. The Ohio law applies specifically to platforms that target children or are likely to be accessed by children, which is determined based on the following factors:(1) Subject matter;(2) Language;(3) Design elements;(4) Visual content;(5) Use of animated characters or child-oriented activities and incentives;(6) Music or other audio content;(7) Age of models;(8) Presence of child celebrities or celebrities who appeal to children;(9) Advertisements;(10) Empirical evidence regarding audience composition; and(11) Evidence regarding the intended audience.Additionally, the Act makes exceptions for product review sites and “established and widely recognized” news sites with commenting functionality. Penalties for non-compliance include fines of (i) up to $1000 per day for the first 60 days of noncompliance; (ii) up to an additional $5000 per day for days 61–90; and (iii) up to an additional $10,000 per day for days 91 and beyond. While aimed at protecting minors online, the legislation raises serious concerns about free speech, vagueness, and compliance burdens on digital platforms.NetChoice, a trade association representing online businesses, filed a motion for a preliminary injunction against Ohio Attorney General Dave Yost, arguing that the Act violates the First and Fourteenth Amendment rights of both NetChoice’s members and their users. NetChoice contended that the law unduly restricts freedom of expression and the right to access information on the internet. Moreover, NetChoice argued that the law is vague and would cause some companies to needlessly spend large amounts of money to comply with a law which may not even apply to them.The court first determined that NetChoice had standing to bring claims on behalf of both itself and its members, based on economic harms to its members as well as constitutional harms, such as the chilling effect on free speech if the court did not hear NetChoice’s claims. Next, the court scrutinized the Act through the lens of both the First and Fourteenth Amendments, considering its implications for free speech and the potential harm it posed to social media platforms and their users.1. Strict Scrutiny and Content Based Restrictions: The court determined that the Act was subject to strict scrutiny, the highest standard of review, because it is “content based.” Strict scrutiny requires the government to show that a law uses a narrowly tailored approach to serve a compelling government interest. The Attorney General argued that, by applying to sites that “target children” or are “reasonably anticipated to be accessed by children,” the Ohio law was simply tailoring its application to platforms that pose a risk to minors’ privacy, health, and safety rather than targeting any particular content. The court held, however, that provisions of the law that applied to sites with certain features were inherently content based, since they conveyed a message about the community that the site intended to curate and foster. Moreover, the court pointed to the exceptions for “established” news sites and product review sites as obviously content based (as an example, the court asked why the law didn’t also include exceptions for book and film review sites). Therefore, the court determined that the Act selectively regulates speech and is subject to strict scrutiny review.2. Vagueness and Overbreadth: The court found the Act’s vagueness and broad application potentially chilled free speech, with unclear compliance requirements for platforms. For example, the Attorney General argued that the Ohio law is concerned with protecting minors from entering into terms of service that permit use of their personal data. The court noted, however, that the law is both overbroad because it completely blocks minors from these sites absent parental consent, and also underinclusive because it allows that “a child can still agree to a contract with the New York Times without their parent’s consent, but not with Facebook.” The Attorney General also recited a litany of potential psychological and real-world harms to children from use of certain social media sites, to which the court replied that the law “is a breathtakingly blunt instrument for reducing social media’s harm to children.” With respect to vagueness issues under the Fourteenth Amendment, the court pointed to the law’s “eyebrow-raising exception” for “established” and “widely recognized” media outlets and concluded that “[s]uch capacious and subjective language practically invites arbitrary application of the law.”3. Impact on Minors’ Rights: Highlighting the 2011 Supreme Court case, Brown v. Ent. Merchants Ass’n, which invalidated a California law prohibiting the sale of violent video games to minors, the court noted that the Ohio law does not enforce parental authority, as the Attorney General argued, but rather imposes governmental authority, subject to a parental veto. The court also made the converse point, that online platforms have a right to disseminate protected speech to both minors and adults.4. Balance of Equities and the Public Interest: After concluding that NetChoice had shown a strong likelihood of success on the merits and likelihood of irreparable harm, the court considered the final two preliminary injunction factors, whether the injunction would harm others and whether the public interest would be served by the injunction, noting that these two factors “merge when the government is a party.” While the Attorney General contended that the public interest would be served by allowing the law to go into effect and protect minors, the court was convinced by NetChoice’s argument that “the State has no interest in enforcing laws that are unconstitutional.” Accordingly, the court granted the preliminary injunction.This case is one of a number of recent and pending cases pitting legislative attempts to regulate social media platforms against the free speech rights and other constitutional rights of the platforms and their users. We will be following the case as it progresses, and will report back on any further developments.

Court Prohibits Ohio’s AG From Enforcing Social Media Parental Notification Act

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

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

Court Prohibits Ohio’s AG From Enforcing Social Media Parental Notification Act

A court in the Southern District of Ohio has issued a preliminary injunction against enforcement of the Social Media Parental Notification Act, an Ohio law that would require social media platforms to obtain parental consent for users under 16.

In late October, Facebook announced that it would <a rel="noopener" target="_blank" href="https://about.fb.com/news/2021/10/facebook-company-is-now-meta/">change its name to Meta</a>, signaling a shift of the social media giant’s focus toward the <a rel="noopener" target="_blank" href="https://www.investopedia.com/metaverse-definition-5206578">metaverse</a>, a virtual space where social media, gaming, augmented reality, virtual reality, and cryptocurrencies converge and allow people to interact virtually with one another. It’s a relatively new concept in technology with <a rel="noopener" target="_blank" href="https://www.forbes.com/sites/cathyhackl/2021/05/02/defining-the-metaverse-today/?sh=883764764485">many different definitions and interpretations</a>. Facebook CEO Mark Zuckerberg <a href="https://about.facebook.com/meta">made the announcement at the company’s annual Connect conference</a> that brings together virtual and augmented reality developers, content creators, marketers, and other technologists to explore the industry’s growth and expansion.In addition to the name change, <a rel="noopener" target="_blank" href="https://about.fb.com/news/2021/11/update-on-use-of-face-recognition/">Facebook also announced</a> in early November that it would be shutting down its face recognition system that close to a third of all Facebook users use. This change in technology policy represents a seismic shift for the company and for the larger social media landscape, reflecting ongoing conversations in the industry about data privacy and access to personal information.Just in time for the holiday shopping season: Pinterest launches its own shopping networkIn late October, image sharing social media giant <a href="https://newsroom.pinterest.com/en/post/introducing-pinterest-tv">Pinterest announced</a> the launch of Pinterest TV, a digital destination where users and subscribers can interact with Pinterest creators selling their goods and creations. The channel features original episodes from “Pinners” in livestream sessions that are recorded and can be accessed after broadcast in an on-demand archive.COVID-19 fueled a meteoric increase in both online and live streaming shopping activities delivered from traditional television channels such as QVC and Home Shopping Network as well as internet companies such as YouTube, TikTok, Snapchat, and Amazon. <a rel="noopener" target="_blank" href="https://www.axios.com/live-video-shopping-format-fire-fd6b2b15-0e0e-46ea-9dce-64a167a277e8.html">Axios reported in September</a> that the live video shopping format is poised for exponential growth, while Coresight Research, a retail and tech analysis firm, predicted that livestream e-commerce could see growth to $25 billion in sales within the next two years.Social media companies prevail in Communications Decency Act’s intellectual property exception; Third Circuit cites internet publisher immunityKaren Hepp, a well-known Philadelphia television journalist, was photographed in 2017 by a New York City convenience store camera without her knowledge or consent. That photograph later found its way in a variety of online advertisements ranging from dating services to erectile dysfunction products.Hepp sued Facebook, Reddit, and Imgur in the United States District Court for the Eastern District of Pennsylvania. She claimed that each platform violated Pennsylvania’s statutory and common law right of publicity laws. <a rel="noopener" target="_blank" href="https://today.westlaw.com/Document/Iaf5326271d1d11ecbea4f0dc9fb69570/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true">The Third Circuit of the United States Court of Appeals recently dismissed the case</a>, citing that each of these companies were protected and had immunity under Section 230 of the Communications Decency Act 0f 1996 (CDA). Read the full opinion of <a rel="noopener" target="_blank" href="https://law.justia.com/cases/federal/appellate-courts/ca3/20-2725/20-2725-2021-09-23.html">Hepp v. Facebook, No. 20-2725 (3d Cir. 2021).</a>Algorithms under fire: proposed bill could alter Section 230 of the Communications Decency ActHouse Energy and Commerce Committee Chairman Frank Pallone, Democratic Representative from New Jersey, is sponsoring the Justice Against Malicious Algorithms Act (JAMA), a bill that would modify Section 230 of the Communications Decency Act of 1996 (CDA), which protects websites from liability over content posted by their users. The bill seeks to amend and strip away immunity from online platforms if they “knowingly or recklessly uses a personalized algorithm to recommend content that materially contributes to physical or severe emotional injury” <a rel="noopener" target="_blank" href="https://www.axios.com/newsletters/axios-login-55b536ad-4a7b-4557-a4d7-d3d1dde8be18.html">according to Axios</a>. The bill does not apply to platforms with fewer than five million unique monthly visitors or users.Some <a rel="noopener" target="_blank" href="https://www.engadget.com/house-bill-justice-against-malicious-algorithms-act-162915185.html">analysts don’t think the bill will get past the House of Representatives</a>, but even with its introduction, it sends a strong message for social media platforms to introduce more stringent policies away from self-regulation of content.LinkedIn’s presence in China to change under censorship concernsLinkedIn, the professional networking giant, recently announced that it will <a rel="noopener" target="_blank" href="https://blog.linkedin.com/2021/october/14/china-sunset-of-localized-version-of-linkedin-and-launch-of-new-injobs-app">retire its Chinese version and replace it with a new job board called “InJobs”</a> to connect China-based professionals with employers. LinkedIn acknowledges that operating in China presents challenges in compliance with the country’s requirements.LinkedIn recently came under fire for recently <a rel="noopener" target="_blank" href="https://www.axios.com/linkedin-blocks-us-journalists-profiles-in-china-22fcefd4-5bc1-490b-a448-b4f9b05e9566.html">blocking U.S. journalists’ profiles in China</a>. One such journalist, Bethany Allen-Ebrahimian, <a rel="noopener" target="_blank" href="https://www.axios.com/linkedin-unanswered-questions-china-censorship-56b75495-230c-4dc2-9a29-6a35e2f8cec0.html">pressed the platform about its censorship activities in China.</a>This unfolding story raises ongoing questions about Western technology companies and the roles they play in China, especially in their interplay with the Chinese government and its strict censorship laws and regulations.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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.











Anthony Ramirez

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Facebook rebrands as “Meta;” disables facial recognition capabilities

Facebook rebrands as “Meta;” disables facial recognition capabilities

sociallyaware-ecommerce

In late October, Facebook announced that it would change its name to Meta, signaling a shift of the social media giant’s focus toward the metaverse, a virtual s

As part of the new <a href="http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s3433.pdf" target="_blank" rel="noopener noreferrer">Fair Consumer Contracts Act</a>, [Gesetz für Faire Verbraucherverträge; published in the Federal Gazette (Part I) no. 53/2021, p. 3433 et seq., full text publicly available (<a href="http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s3433.pdf" target="_blank" rel="noopener noreferrer">in German</a>) Germany will soon require specific cancellation/termination mechanisms for consumer subscriptions. These mechanisms come on top of the updated EU-wide consumer contract rules under the EU Directives on Contracts for Digital Services and Content and on Contracts for the Consumer Sale of Goods and will take effect on July 1, 2022. Significant implementation effort is expected for affected providers.Businesses offering subscriptions to German consumers will have to provide a specifically labeled button for their online retail channels that leads to a contact form through which consumers must be enabled to cancel existing subscriptions with the click of only one further button. If sufficient data to identify the subscription to be cancelled is entered by the consumer, the submission of the form will itself be a valid cancellation, the effect of which cannot be made subject to further steps such as logins or second factor (e.g., email, app) confirmations.Failing to implement this “cancellation button” or “termination button” correctly will invalidate any minimum subscription terms or termination notice periods in contracts for which such button should have been provided and will be a breach of consumer protection that opens providers to cease and desist claims.<a href="https://www.mofo.com/resources/insights/211006-new-two-click-cancellation-button.html">Read the full client alert</a>.

DocuSign, Inc

enercity AG

SoftBank Vision Fund

TDK and its subsidiary EPCOS

Tele Columbus

United Internet/1&1

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Kristina has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus o

Kristina Ehle

New “Two-Click Cancellation” Button – German Exceptionalism for Subscription Terminations