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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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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Is an employer allowed to access an employee’s email account when the employee is on sick leave? To what extent is control permissible when an employee is suspe

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Employer Surveillance of Internet and Email Use in the Workplace in Germany

Employer Surveillance of Internet and Email Use in the Workplace in Germany | Socially Aware

Is an employer allowed to access an employee’s email account when the employee is on sick leave? To what extent is control permissible when an employee is suspected of illegal activities, e.g., of leaking trade secrets? In Germany, these questions are at the crossroads of data privacy and telecommunications law with their respective administrative and even criminal sanctions. The proper rules and best practice examples have been recapped in a guideline (the “Guideline”) issued in January 2016 by the Conference of Data Protection Authorities of the Federation and of the States in Germany (“DPA Conference”).Private use excluded, employers may dispense with employee consentTo the extent that private email and Internet use is banned or restricted by the employer, only data privacy law applies.  Thus, concerns relating to the Telecommunications Act, employment law, or the Telemedia Act are not applicable if all private use is prohibited. Internet protocol data may be accessed without prior consent, e.g., in order to verify compliance with the restrictions on private use or to protect the network. However, access even to IP addresses should take into account the proportionality principle. According to the Guideline, the employer should, as a first step, evaluate Internet protocol data on an anonymous basis, followed by individual spot tests where necessary.With regard to emails, the employer is not required to obtain the employee’s consent and may review the content of professional emails relevant to a specific business transaction or as pre‑defined by other specific categories. A constant review of all professional emails is not permissible. Consequently, for employees on leave, out of office messages are the method of choice to inform recipients that the individual may not respond (rather than having someone else check the emails). Alternatively, it is permissible to completely reroute emails if the demands of the workplace require such a solution. Full surveillance of an employee’s online activity is generally prohibited, unless there is a reasonable basis for believing that the employee’s use of the IT services violates the law and the proposed measures are proportional.Private use of workplace IT triggers telecommunication secrecy consent requirementEmployers should carefully consider whether they wish to permit private use of their workplace IT systems or whether such use should be limited or banned altogether. To the extent that private use is permitted, the DPAs view employers as telecommunication service providers who are bound by the stringent rules of telecommunication secrecy. The chance that the employee’s inbox contains private emails (when private use is allowed) will prevent the employer from accessing the professional account altogether, unless such access is permitted by the employee on a case-by-case basis. Accordingly, to the extent that employees are entitled to use the Internet for private purposes, the employer is prohibited from reviewing the employee’s Internet usage (i.e., who accessed which website at what time and for how long). In contrast, where private use by employees is prohibited, the employer may review such Internet usage without prior consent of the employee.While a number of lower courts disagree with the DPAs’ view, the question has not yet been decided by a German Federal Court, and employers should follow the DPAs’ interpretation. In practice, sanctions are limited to fines; however, in theory, improper access to private email or to an employee’s private use of the Internet could result in criminal liability.Permission for private use may be construed where employers fail to sanction private useThe DPA Conference points out that failure to lay down the rules of use will often amount to permission for private use. The same is true for a ban of private use that is not effectively monitored and sanctioned. If an employer tolerates private use for a significant period of time, this conduct may give rise to an (unwritten) company practice, binding the employer for the future. As a consequence, the DPA Conference prompts employers to lay out the rules of workplace use of the IT services in writing, either in the employment contract, a corporate guideline, or, where a works council is established, in a works agreement. The employer may subject permission to specific conditions, e.g., limitations in time, rules of conduct, and general rules limiting the employer’s access to employee emails or Internet data.Consent is valid only where it is genuinely freeThe Guideline does not elaborate on the conditions of consent by the employee. On the European level, the Working Party 29 (WP 29) recognizes consent in the employment context to the extent that it is genuinely free (see Opinion 15/2011 on the definition of consent, dated July 13, 2011, p. 13). Notably, the WP 29 considers consent invalid where it is a condition of employment, such as consent required in the employment contract. Where it is provided in an ongoing employment relationship, consent is valid unless “it is not possible for the worker to refuse.” This conforms to a decision by the Federal Labor Court of December 11, 2014 (docket no. 8 AZR 1010/13, juris). In this decision, the Court held that employee consent provided in an ongoing employment relationship is valid unless concrete evidence indicates pressure or coercion or otherwise a lack of choice.New Guideline dispenses with requirement of consent by third‑party communication partnersFor access to an employee’s email account, the DPAs have, in the past, also required the thirdparty’s consent, i.e., the consent of the sender of an email to the employee. Interestingly, the DPA Conference has now confirmed in its Guideline that employers may dispense with consent of the third‑party sender or recipient, which is naturally hard to obtain in practice. When access to emails is required by the course of business, the DPA Conference states that the employer can rely solely on the employee’s consent.