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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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

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.

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Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them.The National Labor Relations Board decided <a href="http://www.bna.com/chipotle-worker-social-n73014446651/" target="_blank" rel="noopener">a social media policy that Chipotle had in place for its employees violates federal labor law</a>.A group of lawmakers plans to introduce <a href="http://www.theatlantic.com/politics/archive/2015/08/bill-to-criminalize-revenge-porn-coming-after-recess/458160/" target="_blank" rel="noopener">legislation that would criminalize revenge porn</a>—explicit images posted to the web without the consent of the subject—at the federal level.The Truth in Advertising organization <a href="http://abovethelaw.com/2016/08/kardashian-media-empire-under-legal-scrutiny/" target="_blank" rel="noopener">sent the Kardashians a letter </a>threatening to report them for violating the FTC’s endorsement guides. This <a href="http://www.wsj.com/articles/fda-sends-warning-letter-after-kim-kardashian-touts-morning-sickness-drug-1439401985" target="_blank" rel="noopener">isn’t the first time</a> the legality of the famous family’s social media posts has been called into question. If only Kim would read <a href="http://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">our influencer marketing blog posts</a>.According to one study, <a href="https://contently.com/strategist/2016/08/16/study-68-of-publishers-use-editorial-staff-to-create-native-ads/" target="_blank" rel="noopener">68% percent of publishers</a> use editorial staff to create native ads.Twitter launched <a href="http://venturebeat.com/2016/08/24/twitter-launches-button-letting-you-send-direct-messages-from-any-website/?utm_content=buffer67be7&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer" target="_blank" rel="noopener">a button that a company can place on its website</a> to allow users to send a direct message to the company’s Twitter inbox.The Center for Democracy & Technology criticized the Department of Homeland Security’s proposal to ask visa-waiver-program applicants to disclose their social media account information.UK lawmakers issued a report calling on the big social media companies to do more to <a href="https://www.yahoo.com/tech/social-media-giants-must-more-police-sites-uk-134051320--finance.html" target="_blank" rel="noopener">purge their platforms of hate speech</a> and material that incites violence.<a href="http://www.nwaonline.com/news/2016/aug/20/social-media-playing-bigger-role-in-nor/?news" target="_blank" rel="noopener">Social media is playing bigger role in jury selection</a>, Arkansas prosecutors and criminal defense lawyers say.A day in the life of <a href="http://digiday.com/publishers/the-economist-denise-law/" target="_blank" rel="noopener">the Economist‘s head of social media</a>.Seven things smart <a href="http://www.inc.com/melanie-deziel/7-things-smart-entrepreneurs-do-on-instagram.html" target="_blank" rel="noopener">entrepreneurs do on Instagram</a>.Four ways to get busy people to <a href="http://time.com/money/4461991/get-people-to-read-emails/?xid=soc_socialflow_facebook_realsimple" target="_blank" rel="noopener">read the email</a> you send them.Want to know how Facebook views your political leanings? <a href="http://www.nytimes.com/2016/08/24/us/politics/facebook-ads-politics.html?_r=0" target="_blank" rel="noopener">Here’s the way</a> to find out.

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

Social Links: Google penalizes sites with pop-up ads; proposed Federal legislation to criminalize revenge porn; ad industry group questions Kardashians’ social media posts

Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them. The National Labor Relations Board decided a

Social Links: Google penalizes sites with pop-up ads; proposed Federal legislation to criminalize revenge porn; ad industry group questions Kardashians’ social media posts

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but <a href="http://www.vanityfair.com/news/2016/08/facebook-adblock-plus-work-around" target="_blank" rel="noopener">Adblock Plus has already foiled the platform’s efforts</a>, at least for now.A look at Twitter’s 10-year <a href="https://www.buzzfeed.com/charliewarzel/a-honeypot-for-assholes-inside-twitters-10-year-failure-to-s?utm_term=.fx6KOMDxrL#.ytjwx67GJ4" target="_blank" rel="noopener">failure to stop harassment</a>.Are mobile apps killing the web?<a href="http://www.mediapost.com/publications/article/282274/linkedin-sues-to-shut-down-scrapers.html" target="_blank" rel="noopener">LinkedIn sues</a> to shut down “scrapers.”The FTC is planning to <a href="http://adage.com/article/digital/ftc-cracking-social-influencers-labeling-promotions/305345/" target="_blank" rel="noopener">police social media influencers’ paid endorsements more strictly</a>; hashtags like #ad may not be sufficient to avoid FTC scrutiny. <a href="http://www.ft.com/cms/s/0/d200d8c2-5fef-11e6-b38c-7b39cbb1138a.html" target="_blank" rel="noopener">Officials in the UK</a> are cracking down on paid posts, too.Dan Rather, <a href="http://www.theatlantic.com/technology/archive/2016/08/dan-rather-reporting-for-facebook/495431/" target="_blank" rel="noopener">Facebook anchorman</a>.The U.S. Olympic Committee sent letters to non-sponsoring companies <a href="http://www.espn.com/olympics/story/_/id/17120510/united-states-olympic-committee-battle-athletes-companies-sponsor-not-olympics" target="_blank" rel="noopener">warning them against posting about the games</a> on their corporate social media accounts.How IHOP keeps winning the love & affection of its 3.5 million Facebook fans.A Canadian woman whose home was designated a Pokémon Go “stop” is <a href="http://www.cbsnews.com/news/pokemon-go-canada-class-action-lawsuit-gym-home-torrington-alberta/" target="_blank" rel="noopener">suing the app’s creators</a> for trespass and nuisance. We <a href="http://www.sociallyawareblog.com/2016/07/21/pokemon/" target="_blank" rel="noopener">saw that</a> coming.There’s a website dedicated to helping Snapchat users fool their followers into thinking they’re out on the town.Facebook has been wooing premium content owners, but <a href="http://www.wsj.com/articles/tv-companies-resist-facebook-video-deals-1470823203" target="_blank" rel="noopener">TV companies are reportedly resisting</a>.PETA got a <a href="https://www.techdirt.com/articles/20160805/16593335170/primatologist-tells-court-that-macaque-monkeys-are-like-super-smart-so-they-should-totally-get-copyrights.shtml" target="_blank" rel="noopener">primatologist to submit an amicus curiae brief</a> supporting its suit alleging a monkey who took a selfie is entitled to a copyright for the image.

Social Links: Facebook’s anti-ad-blocking software; LinkedIn’s “scraper” lawsuit; FTC’s upcoming crackdown on social influencers

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but Adblock Plus has already foiled the pl

Social Links: Facebook’s anti-ad-blocking software; LinkedIn’s “scraper” lawsuit; FTC’s upcoming crackdown on social influencers

Social media has upended a number of industries. Is <a href="http://www.marketwatch.com/story/social-medias-next-disruption-the-investment-industry-2016-06-09" target="_blank" rel="noopener">Wall Street next</a>?Facebook is getting into the video game live-streaming business.Steven Avery’s defense attorney is <a href="http://www.postcrescent.com/story/news/2016/06/07/avery-attorneys-social-media-strategy-questioned/85233596/" target="_blank" rel="noopener">keeping her 163,000 Twitter followers abreast of her ongoing defense work</a> on behalf of the “Making a Murderer” documentary subject, and some lawyers think it’s a bad idea.Five quick and easy ways to <a href="https://www.entrepreneur.com/article/276564" target="_blank" rel="noopener">double your social media following</a>.Fake Internet traffic schemes will become the second-largest market for criminal organizations behind cocaine and opiate trafficking.<a href="http://adexchanger.com/featured-2/bots-and-fraudsters-are-feasting-on-political-ad-dollars/" target="_blank" rel="noopener">Bots and fraudsters</a> are feasting on political ad dollars.People are spending <a href="http://www.cnbc.com/2016/06/06/people-are-spending-much-less-time-on-social-media-apps-said-report.html" target="_blank" rel="noopener">less time on social media apps</a> these days? With <a href="http://variety.com/2016/digital/news/snapchat-twitter-pinterest-us-users-2016-1201791237/" target="_blank" rel="noopener">Snapchat on pace to have more than 58 million active users</a> this year, we’re skeptical.The man who created the Internet wants to <a href="http://www.nytimes.com/2016/06/08/technology/the-webs-creator-looks-to-reinvent-it.html?_r=0" target="_blank" rel="noopener">create a less centralized web</a> with more privacy and less government and corporate control.Should Twitter <a href="http://abovethelaw.com/2016/06/this-simple-tweak-could-fix-twitter/" target="_blank" rel="noopener">limit the number of tweets</a> users can send each day? <a href="http://www.sociallyawareblog.com/2015/02/17/status-updates-85/" target="_blank" rel="noopener">Other platforms</a> see the value in limiting posts.In the UK the number of arrests over <a href="http://www.dailymail.co.uk/news/article-3624059/Arrests-offensive-social-media-posts-soar-police-target-internet-trolls.html" target="_blank" rel="noopener">offensive social media posts</a> is soaring.Research shows an alarming number of people in the UK <a href="https://www.research-live.com/article/news/misleading-social-media-marketing-putting-businesses-at-risk/id/5008012" target="_blank" rel="noopener">can’t distinguish between marketing and non-commercial content on social media</a>, indicating potential breaches of the CAP Code (the UK’s version of the <a href="http://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">FTC’s Endorsement Guides</a>). Here’s how social media marketers in the UK can stay on the <a href="http://www.sociallyawareblog.com/2015/10/05/how-uk-brands-that-use-vlogger-endorsements-social-media-for-marketing-can-stay-on-the-right-side-of-the-law/" target="_blank" rel="noopener">right side of the law</a>.Google co-founder Larry Page is <a href="http://www.theverge.com/2016/6/9/11893032/google-co-founder-larry-page-is-secretly-building-flying-cars" target="_blank" rel="noopener">secretly building flying cars</a>.Our attention spans are decreasing. Here’s how that should affect your brand’s <a href="http://www.adweek.com/socialtimes/john-stevens-guest-post-decreasing-attention-spans/640539" target="_blank" rel="noopener">website and social media strategy</a>.In a massive recent theft of Twitter usernames and passwords, “123456” was the most commonly used passcode by far. Sigh.

Social Links: Social’s potential to upend the investment industry; online ad fraud; a proposal to fix Twitter

Social media has upended a number of industries. Is Wall Street next? Facebook is getting into the video game live-streaming business. Steven Avery’s defense at

Social Links: Social’s potential to upend the investment industry; online ad fraud; a proposal to fix Twitter

Social media has allowed aspiring authors, musicians, filmmakers and other artists to publish their works and develop a fan base without having to wait to be discovered by a publishing house, record label or talent agency. And that seems to have made at least modest celebrity easier to achieve. The financial rewards that we usually equate with fame, however, might be just as elusive as they were in the pre-Internet age—perhaps even more so, in an era where content, once posted online, can be exploited by others in ways that typically don’t generate money for the creator of the content.Sure, some hard-working social media stars are scoring big profits based on their popularity. The YouTube channel <a href="https://www.youtube.com/user/CharlisCraftyKitchen" target="_blank" rel="noopener">CharlisCraftyKitchen</a>, for example, which features videos of a young girl making treats and which boasts 29 million views a month, averages monthly ad revenue close to $130,000.The Swedish gamer <a href="https://www.youtube.com/user/PewDiePie">PewDiePie</a>’s net worth is estimated at<a href="http://coed.com/2016/04/04/pewdiepie-net-worth-how-much-is-pewdiepie-worth-money-youtube-star-felix-arvid-ulf-kjellberg/" target="_blank" rel="noopener"> $61 million</a>—a big sum for a guy who is unknown to most people over 40 years old.And, having secured a book deal and endorsement contracts with brands like L’Oreal, self-taught makeup artist/vlogger <a href="https://www.youtube.com/user/MichellePhan" target="_blank" rel="noopener">Michelle Phan</a> is now at the center of a true life <a href="http://www.latimes.com/business/la-fi-youtube-stars-20140808-story.html" target="_blank" rel="noopener">rags to riches story</a>.I suspect, however, that a far more common tale is the one told by Gaby Dunn, co-star of the YouTube comedy sketch channel <a href="https://www.youtube.com/user/justbetweenusshow" target="_blank" rel="noopener">Just Between Us</a>, in a fascinating article entitled “Get Rich or Die Vlogging: The Sad Economics of Internet Fame.”Dunn reports that, despite her channel’s “more than half a million subscribers” and “hungry fan base,” she’s broke and has to take menial jobs to make ends meet.Dunn says that she and her vlogging partner, Allison Raskin, make money from the “ads that play before [their] videos,” and by freelance writing and performing, “but it’s not enough to live, and its influx is unpredictable.”Almost as frustrating as brands not believing that Dunn’s channel is big enough to sponsor are her fans’ reactions when she does score a patron. Dunn’s and Raskin’s third branded video in more than two years resulted in viewer comments such as “Enough with the product placement” and “Gotta get that YouTube money, I guess.” And, as we’ve discussed in <a href="https://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">past blog posts</a>, if a vlogger or other content producer is being paid to endorse a product or service, he or she is generally required to disclose this material connection to his or her followers.In any event, Dunn is hardly the only online content creator feeling the pinch. Even writers who’ve enjoyed full-time positions at large journalism outlets are finding themselves out of a regular paycheck. The popular digital media website Mashable, for example, <a href="http://www.politico.com/blogs/on-media/2016/04/politics-news-and-editorial-video-slashed-in-mashable-restructuring-221683" target="_blank" rel="noopener">laid off 30 members of its staff</a>—including several high-level editors. The current affairs website Salon recently cut back on the number of people on its payroll, too—20 percent of the publication’s editorial staff lost their jobs in April.Things are equally discouraging in the music business; one revealing statistic from the RIAA is that, in 2015, record companies <a href="http://pitchfork.com/news/64345-vinyl-sales-made-more-money-than-free-streams-last-year/" target="_blank" rel="noopener">received more money from vinyl record sales than from ad-supported online streaming</a>.A real challenge for social media celebrities and other content creators is that <a href="http://adage.com/article/digital/google-q4-2015-earnings/302462/" target="_blank" rel="noopener">online ad rates have been declining for years</a>; despite the continued growth of online advertising, there are not enough ads to support the ever-expanding pool of Web content seeking advertiser support.Another threat is the rise of <a href="http://www.businessinsider.com/freebooting-video-on-facebook-2015-8" target="_blank" rel="noopener">freebooting</a>—that is, the practice where a video specifically created for and posted to YouTube is, without the authorization of the video’s creator, copied and uploaded to Facebook, where it may generated millions of views without compensation to the creator.And perhaps the greatest concern for content creators is the increasing popularity of ad-blocking technologies. The use of ad blockers has grown by 41 percent over the past 12 months; there are now nearly 200 million active users of such technologies worldwide. In the United States, an estimated 45 million Americans are surfing an ad-free version of the Internet, resulting in an estimated $22 billion in lost ad revenues in 2015.All of this adds up to form a rather bleak picture for content creators seeking to make a living online; a million social media followers may result in fame, but not fortune. And fame without fortune doesn’t pay the bills. *    *    *For more information on potential legal hurdles for social media celebrities, influencers, bloggers, vloggers and other content creators seeking to make a living online, please see these related Socially Aware blog posts:<a href="https://www.sociallyawareblog.com/2016/05/05/innovative-social-media-marketing-cannot-overlook-old-fashioned-compliance/" target="_blank" rel="noopener">Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance</a><a href="https://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers</a><a href="https://www.sociallyawareblog.com/2014/12/03/ftc-enforcement-action-confirms-that-ad-disclosure-obligations-extend-to-endorsements-made-in-social-media/" target="_blank" rel="noopener">FTC Enforcement Action Confirms That Ad Disclosure Obligations Extend to Endorsements Made in Social Media</a><a href="https://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign</a><a href="https://www.sociallyawareblog.com/2016/01/05/a-warning-from-the-ftc-on-native-advertising/" target="_blank" rel="noopener">An FTC Warning on Native Advertising</a>

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Show Me the Money: Are Social Media Celebrities and Other Online Content Creators Really Raking in the Cash?

Show Me the Money: Are Social Media Celebrities and Other Online Content Creators Really Raking in the Cash?

Social media has allowed aspiring authors, musicians, filmmakers and other artists to publish their works and develop a fan base without having to wait to be di

In an age of <a href="http://www.adweek.com/socialtimes/the-growth-of-social-media-from-trend-to-obsession-infographic/142323" target="_blank" rel="noopener">explosive growth for social media</a> and <a href="http://www.businessinsider.com/tv-ratings-decline-2015-9" target="_blank" rel="noopener">declining TV viewership numbers</a>, companies are partnering with so-called “influencers” to help the companies grow their brands. Popular users of Instagram, Vine, YouTube and other social media sites have <a href="http://variety.com/2014/digital/news/survey-youtube-stars-more-popular-than-mainstream-celebs-among-u-s-teens-1201275245/" target="_blank" rel="noopener">gained celebrity status</a>, generating millions of views, impressions and “likes” with every upload.Capitalizing on the shift from traditional media to online platforms, advertisers have begun to engage influencers in marketing campaigns. In a May 2015 study, 84% of marketers said they expect to launch at least one influencer marketing campaign in the next 12 months. Of those who had already done so, 81% said influencer engagement was effective. In a <a href="http://www.adweek.com/socialtimes/survey-tomoson-influence-marketing-budgets/617753" target="_blank" rel="noopener">separate study</a>, 22% of marketers rated influencer marketing as the fastest-growing online customer-acquisition method.So what is an influencer, anyway? By its broadest definition, an influencer is any person who has influence over the ideas and behaviors of others. When it comes to social media, an influencer could be someone with millions of followers or a user with just a few loyal subscribers. One thing that all influencers seem to have in common is that their audiences trust them. As such, influencers can be powerful advocates, lending credibility, increasing engagement and ultimately driving consumer actions.Influencer marketing can be an effective tool, but it’s important to do right. As recent Federal Trade Commission (FTC) and Food and Drug Administration (FDA) investigations demonstrate, online advertising is an area of relatively active enforcement, and influencer marketing presents a number of potential legal issues. The following tips can help companies lead successful influencer marketing campaigns while lessening the risk of liability.<h3>Disclosure Is Key</h3>In September, the <a href="https://www.ftc.gov/news-events/press-releases/2015/09/xbox-one-promoter-settles-ftc-charges-it-deceived-consumers" target="_blank" rel="noopener">FTC settled a case with Machinima</a>, a company that paid popular video bloggers to promote Microsoft’s Xbox One system through YouTube. Despite the hefty sums paid out to the gamers (one of whom pocketed $30,000), Machinima did not require them to make any disclosures. The FTC alleged that the failure to disclose the relationship between Machinima and the gamers was deceptive, in violation of Section 5 of the FTC Act. In its <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf" target="_blank" rel="noopener">Endorsement Guides</a>, the FTC has taken the position that a failure to disclose unexpected material connections between companies and the individuals who endorse them is deceptive.This case raises two important questions: (1) when is a disclosure required and (2) what constitutes adequate disclosure?Both of these questions were addressed in the FTC’s comments in its 2014 investigation of Cole Haan. The investigation involved a Pinterest marketing campaign in which the company encouraged users to create boards that included five Cole Haan shoe images as well as five images of the contestants’ “favorite places to wander.” Contestants were instructed to use the hashtag “#WanderingSole” in each pin description. The contestant with the most creative entry would receive a $1,000 shopping spree. The FTC alleged that the contest violated Section 5 of the FTC Act for failure to disclose contestants’ connection to Cole Haan.While the FTC ultimately decided not to pursue enforcement action, the agency explained in a <a href="https://www.ftc.gov/system/files/documents/closing_letters/cole-haan-inc./140320colehaanclosingletter.pdf" target="_blank" rel="noopener">closing letter</a> that entry into a contest to receive a significant prize constituted a “material connection” giving rise to a disclosure requirement. According to the <a href="https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking" target="_blank" rel="noopener">FTC Endorsement Guides</a>, a disclosure is needed whenever an endorser is given an incentive (financial or otherwise), and where knowledge of that incentive would affect the weight or credibility that audiences give to the endorser’s statements or actions. Companies that work with influencers to promote the companies’ brands need to make sure that audiences are aware of the relationship between the company and influencer.As to what makes a disclosure adequate, there are, unfortunately, no magical words. The FTC Endorsement Guides state that disclosures should be clear and unambiguous; consumers should be able to find them easily and should not have to look for them. In the Cole Haan case, the FTC did not believe that the #WanderingSole hashtag adequately communicated the financial incentive between the contestants and Cole Haan. According to the Endorsement Guides, hashtags like #Promotion, #Contest or #Sweepstakes probably would have done the trick.<h3>Find the Right Influencer</h3>Identifying the right influencer for a marketing campaign might seem like a business decision, rather than a legal one. From a return-on-investment perspective, it’s certainly important that the influencer’s personality and image align with the brand, and that the influencer’s audience comprises a viable customer base.Business concerns aside, finding the “right” influencer also has legal implications. According to the FTC Endorsement Guides, “You can’t talk about your experience with a product if you haven’t tried it.” Further, “if you were paid to try a product and you thought it was terrible, you can’t say it’s terrific.” Thus, it’s important for companies to remember that influencers must be bona fide users of the products they endorse and, if they provide a positive review, must have actually had a positive experience with those products.<h3>The Truth Will Set You Free</h3>Influencers—and the companies they work with—can also get themselves into trouble for making false or misleading statements while endorsing a brand or product. In August 2015, the <a href="http://www.wsj.com/articles/fda-sends-warning-letter-after-kim-kardashian-touts-morning-sickness-drug-1439401985" target="_blank" rel="noopener">FDA took issue with an Instagram post by Kim Kardashian</a> about a prescription drug for treating morning sickness. The post, which was sponsored by the drug manufacturer, promoted the medicine without mentioning its risks, a practice strictly forbidden by the FDA. The agency sent a warning letter alleging that post was “false or misleading in that it presents efficacy claims for [the drug], but fails to communicate any risk information associated with its use and it omits material facts.” The post was taken down in response.Companies should keep in mind that their influencers should not make any statements that their sponsoring companies can’t themselves make—in other words, no false, misleading or unsubstantiated claims.<h3>The Importance of Monitoring</h3>In recent actions, the FTC has repeatedly emphasized the importance of monitoring regimes. Cole Haan avoided enforcement action partly because it had a social media policy in place that adequately addressed issues like those described above. Likewise, <a href="http://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">Microsoft narrowly avoided being swept up in the Machinima case</a> because Microsoft had a robust compliance program.Ideally, companies working with influencers should have programs in place to train and monitor the influencers. It may not be enough to have the influencer sign an agreement about what he or she can and can’t do. According to the Endorsement Guides, sponsoring companies must instruct influencers on their responsibilities, explain the kinds of statements they can and can’t make, periodically monitor influencers’ behavior and follow up if they are not playing by the rules.<h3>Know Your Intellectual Property Rights</h3>Finally, companies should keep in mind the host of intellectual property and related issues that could arise in influencer marketing, including trademark, copyright, privacy and publicity concerns. For example, companies may give influencers the rights to use corporate logos, branded materials or other company-owned content, but these rights should be limited to intended uses in connection with particular marketing campaigns. Further, if companies wish to own or use any influencer-generated content, those rights would ideally be documented in an assignment or license to the company.In sum, influencer marketing can be a powerful tool, but it is important to be cognizant of potential legal concerns. Advertisers who keep these issues in mind will be in a better position to make the most of this exciting new marketing strategy.

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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).

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Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign

Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign

In an age of explosive growth for social media and declining TV viewership numbers, companies are partnering with so-called “influencers” to help the companies 

Amazon’s customer reviews have long been a go-to resource for consumers researching prospective purchases. Unfortunately, fake customer reviews—product critiques commissioned by merchants and manufacturers in an effort to bolster their own products’ reputations or undermine their competitors’—have been around for almost as long.Now, in its quest to maintain the integrity of its customer reviews, Amazon is targeting an unlikely group: the fake-review writers themselves, all 1,114 of whom advertised their availability to write the phony reviews on Fiverr, a website where freelancers offer services like converting documents from one file format to another for as little as five dollars.In its other attempts to crack down on phony product evaluations, Amazon has named as defendants the websites where phony-review writers solicit work. Unlike those defendant sites, however, which had URLs including and similar to “buyamazonreviews.com,” Fiverr, in its own terms of service, reserves the right to remove gigs that violate the terms of service of third parties, like Amazon.This latest attempt by Amazon to quash the phony product reviews on its site is reportedly the first to go after individual reviewers. Because they probably don’t have particularly deep pockets, fake-review writers who advertise on Fiverr might seem like unlikely defendants in a suit filed by a retail giant like Amazon. But, as Computerworld’s Evan Schuman points out, what’s really at issue is how Amazon’s customers are likely to perceive the intention behind Amazon’s legal crusades.“[W]ith Amazon, the credibility of online reviews is crucial and Amazon users would see people who write fake reviews as enemies,” Schuman writes. “Amazon sends the best possible message to its customers when it’s seen as proactively and aggressively seeking out such evildoers: ‘We believe in our products and services and know that honest reviews will be of the greatest value.’”To uncover the real names of the fake-review writers—as opposed to naming a bunch of “John” and “Jane Does” as defendants—Amazon undertook an elaborate undercover sting operation  that included actually hiring several fraudsters who had advertised their services. The fact that the company went to such great lengths to uncover the real culprits should help to boost customers’ confidence that Amazon is making a good faith effort to protect their best interests.It may also serve as an effective deterrent to the wrongdoers.“If it’s done enough,” Shuman opines, “you plant the seed of doubt in the mind of the criminal: ‘Is this prospective client real or an undercover Amazon investigator? And is it really worth $5 to find out the hard way?’”On the other hand, Amazon’s efforts to eradicate online fake reviews may well turn out to be a giant game of whac-a-mole, with new wrongdoers springing up to take the place of the ones driven off the market all the time. Great conveniences often come at a price, and—in the Internet age—that price takes the form of nuisances like fake product reviews, spam, trolling and pop-up ads.

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Frying Small Potatoes: Will Amazon’s Pursuit of Individual Fake-Review Writers Pay Off?

Frying Small Potatoes: Will Amazon’s Pursuit of Individual Fake-Review Writers Pay Off?

Amazon’s customer reviews have long been a go-to resource for consumers researching prospective purchases. Unfortunately, fake customer reviews—product critique