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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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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<a href="http://www.businessinsider.com/instagram-lets-you-hide-inappropriate-comments-2016-9" target="_blank" rel="noopener">Instagram now allows users to hide offensive comments</a> posted to their feeds. Take that trolls!Soon you’ll be able to watch Twitter content like NFL Thursday Night Football on <a href="https://techcrunch.com/2016/09/14/twitter-launches-on-apple-tv-fire-tv-and-xbox-one/" target="_blank" rel="noopener">a Twitter app on Apple TV, Xbox One and Amazon Fire TV</a>.“Ballot selfie” laws—laws that prohibit posting online photos of completed election ballots—are being challenged in Michigan and <a href="https://www.bostonglobe.com/news/politics/2016/09/13/federal-court-hears-challenge-ballot-selfie-law/IvfIzaZLriQS5DQVGzSJeN/story.html" target="_blank" rel="noopener">New Hampshire</a>.Google may be <a href="http://www.independent.co.uk/life-style/gadgets-and-tech/news/google-voice-search-records-stores-conversation-people-have-around-their-phones-but-files-can-be-a7059376.html" target="_blank" rel="noopener">recording you regularly</a>.YouTube content creators can now <a href="http://www.androidauthority.com/youtube-community-beta-launches-716334/" target="_blank" rel="noopener">communicate with their followers in real time</a>.AdBlock Plus has launched <a href="http://www.theverge.com/platform/amp/2016/9/13/12890050/adblock-plus-now-sells-ads" target="_blank" rel="noopener">a service that allows website operators to display “acceptable” ads</a> to visitors using the popular ad blocking software. Irony, anyone?The EU might soon require the same things of chat apps like Skype that it <a href="http://www.wsj.com/articles/eu-to-get-tough-on-chat-apps-in-win-for-telecoms-1473607662" target="_blank" rel="noopener">requires of telecom businesses</a>.A controversial proposal aims to give the EU’s 500 million consumers <a href="http://www.nytimes.com/2016/09/15/business/international/eu-tv-online-streaming-bbc-netflix.html?emc=edit_tu_20160915&nl=bits&nlid=69264395&te=1" target="_blank" rel="noopener">more digital streaming content choices</a>.An Austrian teen whose parents overshared on social media <a href="http://www.dailydot.com/irl/facebook-photo-lawsuit-austria/" target="_blank" rel="noopener">looks to the law for recourse</a>.Baltimore County officials warned government employees to watch what they say on social media.With so many alternative content providers around these days, <a href="http://www.nytimes.com/2016/07/15/technology/television-the-social-medium.html?emc=edit_tu_20160915&nl=bits&nlid=69264395&te=1&_r=1" target="_blank" rel="noopener">why do we still watch so much TV</a>?Here’s a list of 50 Snapchat marketing influencers who Mashable says are worth following.

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: Instagram’s “offensive comment” filter; Twitter’s TV app; YouTube’s “Community” feature

Instagram now allows users to hide offensive comments posted to their feeds. Take that trolls! Soon you’ll be able to watch Twitter content like NFL Thursday Ni

Social Links: Instagram’s “offensive comment” filter; Twitter’s TV app; YouTube’s “Community” feature

As the entire world knows, the United Kingdom has voted by a narrow majority to leave the European Union (“Brexit”). But the Brexit process will take time, and the implications for businesses will also unfold over time. In this blog post, we take a look at the potential privacy and data security implications of Brexit.No Changes in the Short TermFor the time being, the UK remains a member of the EU; and the Data Protection Directive (“Directive”) and e-Privacy Directive as currently implemented in UK law continue to apply. The Directive will be replaced by the EU General Data Protection Regulation (GDPR) in May 2018, and in the coming period the e-Privacy Directive will be updated to reflect the changes that the GDPR will bring. Given the time that will elapse before Brexit actually occurs, it may well be the case that the GDPR will come into force before the UK formally exits the EU.As the GDPR has the form of an EU regulation, it will be directly applicable in all EU Member States, and no steps need to be taken by the UK for it to be implemented in the national law of the UK. Further, it may well be the case that the UK will have to implement the amended e-Privacy Directive into UK law before Brexit takes place. Until the UK formally exits the EU, data transfers between the UK and the other countries in the EU may continue to occur because the EU data transfer rules do not apply to transfers of personal data within the EU.Changes After BrexitThe situation will change when UK leaves the EU. From that moment on, the GDPR will no longer be applicable in the UK. The national laws implementing EU directives (including the e-Privacy Directive) will, however, remain in force until they are amended or repealed. Thus, the UK will become a “third country” under the data transfer rules in the GDPR. In this case, personal data can only be exported by a business established in the EU to a third country, such as the UK, if there is an “adequate level of protection” for such data, unless certain conditions have been met.There are three options under which the UK may obtain the required “adequacy status,” with the third being the most likely:• Becoming an EEA member: The UK may (like Norway, Liechtenstein and Iceland) become a member of the European Economic Area by becoming a signatory to the EEA Agreement. Under Article 7 of the EEA Agreement, the UK would still need to accept being bound directly by relevant EU laws relating to the four freedoms, including the GDPR. This option is unlikely to be pursued by the UK government in the form adopted by Norway, Liechtenstein and Iceland, in view of the fact that the UK would need to agree to be bound by many of the rules of the EU that have been unpopular with Brexit supporters, including the free movement of people.• The Swiss solution: Switzerland is not part of the EU or EEA (although it has bilateral agreements with the EU allowing access to the single market). Although not bound by it, Switzerland has fully implemented the Directive into its domestic legislation and, on that basis, has received an “adequacy finding” from the European Commission. Switzerland has already indicated its wish to update Swiss legislation to reflect the application of the GDPR and retain its adequacy status. Also, although Switzerland is not subject to the jurisdiction of the European Court of Justice (ECJ), the ECJ’s case law has had a significant influence on Swiss legislation.For instance, after the ECJ struck down the EU-US Safe Harbor Decision of the Commission, the Swiss also declared that the Swiss-US Safe Harbor did not provide a sufficient legal basis for exporting data from Switzerland to the U.S. As with becoming a member of the EEA, the Swiss model would require the UK to adopt the GDPR as it stands now and any further EU legislation on data protection, without having any right to participate in EU rule-making. This option is unlikely to be pursued by the UK government in the form adopted by Switzerland because it would entail the UK agreeing to be bound by many of the rules of the EU which have been unpopular with Brexit supporters, including the free movement of people.• Full adequacy finding: Under this option, he UK would implement its own data protection laws and would then request the Commission to issue a decision that its legal regime is “adequate” when assessed against the standard set by EU data protection law. At first glance, this seems to be the preferred option because it enables the UK to relax some of the rules in order to facilitate trade (as it advocated in the negotiations over the GDPR). However, if the UK wishes to obtain a quick adequacy decision to continue to facilitate data transfers between the UK and the EU also upon exit, it will likely have to implement provisions that are close to the GDPR. Any other approach could set the UK back in getting a quick adequacy decision.The EU may well be averse to any softening of the rules that would give the UK an advantage over EU Member States, or enable some sort of forum shopping. It is therefore not surprising that the UK Information Commissioner’s Office (ICO) has already issued a statement that UK data protection standards would have to be equivalent to the GDPR. We note that the UK has been a long-standing advocate of data protection (e.g., it had a law more than 10 years before the Directive was adopted) and there is solid public awareness of privacy laws. The UK has further ratified Convention 108 (which sets core principles for data protection) as well as the European Convention on Human Rights (“ECHR” – which, in article 8, provides for the right to privacy), and the UK is subject to the European Court of Human Right’s competence. The ICO is a member of the Global Privacy Enforcement Network (GPEN), intended to strengthen cross-border information sharing and co-operation in cross-border enforcement among privacy authorities around the world. This all seems to point into the direction of adequacy.We highlight, however, that the recent Schrems judgment of the ECJ may also have implications for the UK. In the Schrems judgment, the ECJ invalidated the decision of the Commission that approved the Safe Harbor Framework facilitating data transfer to U.S. companies that adhered to this framework, because the privacy of European citizens was not considered to be adequately protected (in short) because the powers of the U.S. intelligence services went beyond what was strictly necessary and proportionate to the protection of national security and individuals did not have adequate means of judicial redress to protect their privacy. The concern that the intelligence services have overly broad surveillance powers may well also apply to the UK intelligence services. More clarity may come from three cases pending before the European Court of Human Rights, which were instigated by the UK Bureau of Investigative Journalism and a number of civil rights organizations, and claim that the generic surveillance powers of the UK intelligence services violate Article 8 of the European Convention on Human Rights.ConclusionsIn the short term, until the UK ceases to be a member of the EU, nothing changes and data transfers may continue as they currently do.Whichever of the three options the UK ultimately follows to obtain adequacy status, the end result will be UK data protection legislation that is very much aligned with the upcoming GDPR and other EU privacy rules.Next Steps for Businesses• While it is expected that the Commission will eventually confirm “adequacy status” for whatever data protection laws the UK puts in place post-Brexit, it is possible that this may not have been done at the precise time of exit. This situation would require businesses to put in place alternative data transfer arrangements for transfers from within the EU to the UK, such as the entering into of standard contractual clauses (SCCs). Controllers and processors can also “adduce appropriate safeguards” for their intra-group transfers by adopting binding corporate rules (“BCRs”). In any case, in the aftermath of the Schrems judgement, we see a trend of companies moving to implement BCRs in order to be less dependent on the adequacy decisions of the Commission and the negotiations of the EU and US in respect of the terms of the new Privacy Shield.• Given the lead time it takes to implement the GDPR requirements into business processes, businesses in the UK should continue their GDPR readiness programs. As indicated above, the rules that the UK will ultimately implement in all likelihood will closely resemble the GDPR. Note further that the GDPR may continue to apply to the data processing activities of UK companies where they offer goods or services to citizens in other EU countries, or otherwise monitor their behavior. The same will apply to UK companies with offices in other EU countries operating central data processing systems.• The ICO has acted as the lead data protection authority (“DPA”) in approving BCRs in many instances. After the exit, the ICO will no longer be authorized to act as lead DPA. Companies with BCRs where the ICO is lead DPA will therefore have to approach another EU DPA to act as their lead DPA. Businesses applying for BCRs and having to select a lead DPA and co-leads should consider taking this into account. *          *        *For more insights regarding the potential legal implications of the recent Brexit vote, please see our MoFo Brexit Briefings page on the Morrison & Foerster website.

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Brexit: Data Protection Implications

As the entire world knows, the United Kingdom has voted by a narrow majority to leave the European Union (“Brexit”). But the Brexit process will take time, and 

Brexit: Data Protection Implications

In a fascinating, must-read article, a Google design ethicist explains the techniques that engineers and entrepreneurs employ to keep us hooked on the web.A majority of U.S. adults—62%—now get their news on social media.An apartment complex in Utah is trying to force its residents to “friend” the complex.Will the next head of state take over the vast online infrastructure that the Obama administration created as the first administration to digitally engage with its constituency?Get ready for 74 new emojis.Tired of being reminded about potentially painful past social media posts? Here’s how to turn off Facebook’s “On This Day” notifications.Texas inmates are now barred from using social media.Participating in online social networks in Russia has become risky business.To comply with a new code of conduct in the European Union, the biggest social media platforms have agreed to remove hate speech within 24 hours.Are websites a dying business?Instagram’s mobile app has a new dashboard that allows small businesses to measure the reach of their posts.Periscope users can now moderate comments during their broadcasts.Stop telling people there’s a dot in your Gmail address—it doesn’t matter.Hootsuite CEO Ryan Holmes says it’s important to hop on the Snapchat bandwagon, no matter how old you are. Here’s why.

Social Links: The rise of social news; how technology hijacks our attention; are websites a dying business?

In a fascinating, must-read article, a Google design ethicist explains the techniques that engineers and entrepreneurs employ to keep us hooked on the web. A ma

Social Links: The rise of social news; how technology hijacks our attention; are websites a dying business?

Defense lawyers who <a href="http://blogs.wsj.com/law/2016/04/19/lawyers-accused-of-facebook-spying-can-face-ethics-complaint-state-high-court-rules/" target="_blank" rel="noopener">checked out the Facebook page of a plaintiff suing their client</a> can be prosecuted for attorney misconduct, New Jersey judge rules.Norwegian band changes its name to avoid “<a href="http://www.billboard.com/articles/news/7318701/norwegian-band-slutface-changes-name-slotface-social-media-censorship" target="_blank" rel="noopener">social media censorship</a>.”Can public agencies control their <a href="http://www.govtech.com/social/Can-Louisiana-Public-Agencies-Control-Employees-Social-Media-Posts.html" target="_blank" rel="noopener">employees’ social media posts</a>?Google has complete discretion over whether or not to grant “<a href="http://www.sociallyawareblog.com/2015/05/28/status-updates-errand-apps-for-everyone-a-right-to-be-forgotten-update-your-entire-google-search-history/" target="_blank" rel="noopener">right to be forgotten</a>” requests. Some people <a href="http://www.nytimes.com/2016/04/19/technology/google-europe-privacy-watchdog.html?_r=0" target="_blank" rel="noopener">question</a> the sense of that.This U.K. bar offers to save its customers from <a href="http://bzfd.it/1rlq4I5" target="_blank" rel="noopener">bad Tinder dates</a>.Why are <a href="http://well.blogs.nytimes.com/2016/04/21/why-do-girls-have-more-anxiety-than-boys/?smid=fb-nytimes&smtyp=cur" target="_blank" rel="noopener">boys at lower risk for the toxic effects of social media</a> than girls?New data indicates that choice of social channel, headlines and post length can <a href="http://www.thedrum.com/news/2016/04/18/facebook-and-linkedin-share-load-b2c-and-b2b-marketers" target="_blank" rel="noopener">maximize shares on social media</a>.Will the new <a href="https://itunes.apple.com/us/app/down-to-lunch/id991526007?mt=8" target="_blank" rel="noopener">Down to Lunch</a> networking app continue to grow in popularity despite hitting some all-too-common <a href="http://www.nytimes.com/2016/04/22/technology/a-hot-app-discovers-virality-and-its-downsides.html?emc=edit_tu_20160421&nl=bits&nlid=69264395&te=1" target="_blank" rel="noopener">social media snags</a>?The NYPD’s anti-encryption #UnlockJustice social media campaign fails. Big time.These puppies <a href="http://www.digitaltrends.com/photography/dogs-on-instagram/" target="_blank" rel="noopener">earn HOW MUCH per Instagram post</a>?! They’d better be in compliance with the FTC’s disclosure rules.To stay abreast of social media-related legal developments, please subscribe to our <a href="mailto:sociallyaware@mofo.com?subject=Please%20Sign%20Me%20Up%20for%20the%20Socially%20Aware%20Newsletter">free newsletter</a>.

Social Links—Facebook-spying litigators; employees’ social media posts; Europe’s Right To Be Forgotten

Defense lawyers who checked out the Facebook page of a plaintiff suing their client can be prosecuted for attorney misconduct, New Jersey judge rules. Norwegian

Social Links—Facebook-spying litigators; employees’ social media posts; Europe’s Right To Be Forgotten

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Privacy Shield vs. Safe Harbor: A Different Name for an Improved Agreement?

Privacy Shield vs. Safe Harbor: A Different Name for an Improved Agreement?

The European Commission (the “Commission”) and the U.S. Department of Commerce issued the draft legal texts for the much anticipated EU-U.S. Privacy Shield (the

The European Commission has announced new draft laws that would give consumers new remedies where digital content supplied online is defective or not as described by the seller.On Dec. 9, 2015, the European Commission proposed two new directives on the supply of digital content and the online sale of goods. In doing so, the Commission is making progress towards one of the main goals in the Digital Single Market Strategy (the “DSM Strategy”) announced in May 2015: to strengthen the European digital economy and increase consumer confidence in trading across EU Member States.This is not the first time that the Commission has tried to align consumer laws across the EU; its last attempt at a Common European Sales Law faltered earlier this year. But the Commission has now proposed two new directives, dealing both with contracts for the supply of digital content and other online sales (the “Proposed Directives”).National parliaments can raise objections to the Proposed Directives within eight weeks, on the grounds of non-compliance with the subsidiarity principle—that is, by arguing that that regulation of digital content and online sales is more effectively dealt with at a national level.<h3>Objectives</h3>Part of the issue with previous EU legislative initiatives in this area is that “harmonized” has really meant “the same as long as a country doesn’t want to do anything different.” This time, the Proposed Directives have been drafted as so-called “maximum harmonization measures,” which would preclude Member States from providing any greater or lesser protection on the matters falling within their scope. The Commission hopes that this consistent approach across Member States will encourage consumers to enter into transactions across EU borders, while also allowing traders to simplify their legal documentation by using a single set of terms and conditions for all customers within the EU.An outline of the scope and key provisions of each of the Proposed Directives, as well as the effect on English law, are summarized after the jump.<h3>Draft Digital Content Directive</h3>ScopeThe draft digital content directive would apply only in business-to-consumer sales, and would not extend to small and medium-sized enterprises—nor to digital content providers in certain sectors such as financial services, gambling or healthcare. The rules would apply regardless of the method of sale, unlike the draft online goods directive. The directive would cover consumers who provide non-monetary consideration in exchange for digital content, such as personal data.Key Provisions <ul><li>Digital content would now expressly include cloud computing and use of social media, and would attract quality standards and statutory remedies for consumers.</li><li>Digital content will be required to conform to key information provided to consumers, such as quality, interoperability, accessibility and security. If content does not conform, the consumer will have rights to require the provider to make it conform, or to receive a refund or terminate the contract.</li><li>Under present English law, the Consumer Rights Act 2015 (“CRA”) applies only where digital content has been paid for. The draft digital content directive would extend the scope of consumer rights to cases where the buyer provides non-monetary consideration such as personal data, thus providing greater protection to consumers than is currently being offered under the CRA. On any termination, businesses would be prohibited from making further use of non-monetary consideration provided by consumers.</li><li>Digital content would need to be provided instantly and in its most recent version, unless otherwise agreed. Where the content is not provided instantly or at its agreed time, the consumer would have a right to terminate immediately.</li><li>The draft digital content directive would remove the current 6-month time limit under the CRA for the presumption that defects are present on delivery (unless the consumer had been forewarned that the digital content was incompatible with the consumer’s digital environment).</li><li>Consumers will have the right to terminate a contract under which digital content is provided on an ongoing basis, if the business modifies the contract to the detriment of the consumer. Furthermore, the business would be required to give notice of the actual changes, and would only be entitled to implement those changes if the contract permitted it.</li></ul><h3>Draft Online Goods Directive</h3>ScopeAs with the draft digital content directive, the draft online goods directive would only apply in business-to-consumer sales. Only goods sold online or otherwise at a distance fall within scope. As such, any face-to-face sales are not covered. Contracts for the supply of services would not be subject to this directive. Where a contract is for the supply of both goods and services, the rules would apply only to those elements of the contract that relate to the goods.Key Provisions<ul><li>Consumers would no longer have a right to reject goods unless a repair or replacement had first been requested and been deemed unsuccessful.</li><li>Emerging defects that are presumed to be present on delivery currently have a time limit of six months under the CRA. The draft online goods directive would extend this to two years.</li><li>In the context of known defects, traders would be required to obtain express consent from consumers in order to escape liability. It will no longer be sufficient to rely on such defects being obvious, or being brought to the customer’s attention.</li></ul>While some Member States have expressed concerns regarding the practicalities of having separate rules for online and offline sales, there does appear to be support for action at the EU-level regarding digital content. If the Proposed Directives are successfully adopted in accordance with the ordinary legislative procedure, the Commission will finally be putting its push for harmonization into practice.

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