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

Social Links: If the Suit Fits

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

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

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

Social Links: Going Back to Cali

LinkedIN

The Newspaper Association of America has filed a first-of-its-kind complaint with the FTC <a href="http://www.politico.com/media/story/2016/05/newspaper-group-takes-ad-blocking-fight-to-federal-trade-commission-004543" target="_blank" rel="noopener">over certain ad blocking technologies</a>.Is it “Internet” or “internet”? The Associated Press is about to <a href="http://www.nytimes.com/2016/05/25/business/media/internet-to-be-lowercase-in-new-york-times-and-associated-press.html?em_pos=small&emc=edit_tu_20160525&nl=bits&nl_art=9&nlid=69264395&ref=headline&te=1&_r=3" target="_blank" rel="noopener">change the capitalization</a> rule.Lots of people criticized Instagram’s new logo, but, according to a design-analysis app, it’s much better than the old logo at doing <a href="http://www.businessinsider.com/eye-tracking-heat-maps-reveal-best-logos-2016-5" target="_blank" rel="noopener">this</a>.<a href="http://www.digitaltrends.com/social-media/twitter-is-no-longer-interested-in-selling-you-things-on-its-platform/#:kO9BZKUd_spdkA" target="_blank" rel="noopener">Twitter has finally realized</a> that people don’t use it to buy things.Facebook wants to help sell <a href="http://www.wsj.com/articles/facebook-wants-to-help-sell-every-ad-on-the-web-1464321603" target="_blank" rel="noopener">every ad on the web</a>.A Russian law enforcement agency is investigating controversial groups alleged to have encouraged more than 100 teenage suicides on social media.A self-proclaimed “badass lawyer” <a href="https://www.techdirt.com/articles/20160521/06385734503/self-proclaimed-badass-lawyer-loses-defamation-suit-against-parody-twitter-account.shtml" target="_blank" rel="noopener">lost a defamation suit against a Twitter account</a> that parodied him.The <a href="http://www.wsj.com/articles/smart-tampon-the-internet-of-every-single-thing-must-be-stopped-1464198157" target="_blank" rel="noopener">Internet of every single thing</a> must be stopped.*        *       *To stay abreast of social media-related legal and business developments, please subscribe to our <a href="mailto:sociallyaware@mofo.com?subject=Please%20Sign%20Me%20Up%20for%20the%20Socially%20Aware%20Newsletter" target="_blank" rel="noopener">free newsletter</a>.

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: Publishers claim ad blockers violate FTC rules; Twitter bags its “buy button”; has the IoT gone too far?

The Newspaper Association of America has filed a first-of-its-kind complaint with the FTC over certain ad blocking technologies. Is it “Internet” or “internet”?

Social Links: Publishers claim ad blockers violate FTC rules; Twitter bags its “buy button”; has the IoT gone too far?

Here’s how <a href="http://www.theverge.com/2016/5/16/11686112/twitter-140-character-count-limit-change-link-photo" target="_blank" rel="noopener">Twitter is loosening up its 140-character limit</a>.The federal government will now check the social media history of prospective employees before granting them security clearance.One expert says C-level executives <a href="http://fortune.com/2016/05/16/hearsay-social-ceos-social-media/" target="_blank" rel="noopener">shouldn’t entrust millennials with their companies’ social media</a> feeds.Federal court <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2201&context=historical" target="_blank" rel="noopener">refuses to dismiss a lawsuit against Google</a> for allegedly removing sites from its search engine results.Before a larceny arrest, a <a href="http://www.nytimes.com/2016/05/16/nyregion/before-a-larceny-arrest-a-cry-for-help-on-facebook.html?smprod=nytcore-iphone&smid=nytcore-iphone-share" target="_blank" rel="noopener">“cry for help” on Facebook</a>.Do strong <a href="http://adcontrarian.blogspot.com/2016/05/does-content-build-brands.html" target="_blank" rel="noopener">social media campaigns really beget successful brands</a>, or is it the other way around?A lawyer representing students suing Google is questioning the impartiality of the federal judge hearing the case because the judge was just hired by <a href="http://fortune.com/2016/05/19/gmail-scanning-grewal/" target="_blank" rel="noopener">this unrelated tech giant</a>.The New York Times live streamed one of its pitch meetings on Facebook Live, and not everyone thinks it was a great idea.Some <a href="http://www.theonion.com/article/2-hour-meeting-spent-thinking-hashtag-absolutely-n-52924" target="_blank" rel="noopener">social media marketing satire</a>, courtesy of The Onion.

Social Links—Twitter loosens up; case against Google stands; should millennials be in charge of big social media campaigns?

Here’s how Twitter is loosening up its 140-character limit. The federal government will now check the social media history of prospective employees before grant

Social Links—Twitter loosens up; case against Google stands; should millennials be in charge of big social media campaigns?

The Great<a href="http://www.nytimes.com/2016/05/12/technology/the-great-instagram-logo-freakout-of-2016.html?smid=tw-nytimesbusiness&smtyp=cur&_r=0" target="_blank" rel="noopener"> Instagram Logo Freakout</a> of 2016.A UK council policy reportedly grants its members power to spy on residents by <a href="http://www.dailymail.co.uk/news/article-3586927/Fakebook-fury-Uproar-council-awards-powers-set-false-social-media-profiles-spy-law-abiding-locals.html" target="_blank" rel="noopener">setting up fake Facebook profiles</a>.Guess who spends more of their <a href="http://www.irishtimes.com/business/media-and-marketing/rise-in-access-to-social-media-at-work-survey-finds-1.2644419" target="_blank" rel="noopener">workday on social media</a>, women or men?<a href="http://www.nytimes.com/2016/05/14/style/we-saw-what-you-did-there-ijustine.html?module=WatchingPortal&region=c-column-middle-span-region&pgType=Homepage&action=click&mediaId=thumb_square&state=standard&contentPlacement=3&version=internal&contentCollection=www.nytimes.com&contentId=http%3A%2F%2Fwww.nytimes.com%2F2016%2F05%2F14%2Fstyle%2Fwe-saw-what-you-did-there-ijustine.html&eventName=Watching-article-click" target="_blank" rel="noopener">Lessons</a> from one of YouTube’s first (and most successful) stars.Should sharing tragic images on social media be against the law?A team of Google employees proposed adding <a href="http://nyti.ms/1UWr6Wv" target="_blank" rel="noopener">new emojis to represent women</a> in professional situations.Has social media forced everyone to brand themselves?Nearly 500 startup companies offer <a href="http://www.abajournal.com/news/article/nearly_500_startup_companies_offer_tech_solutions_to_legal_industry?utm_source=internal&utm_medium=navigation&utm_campaign=navbar" target="_blank" rel="noopener">tech solutions for the legal industry</a>.Using <a href="http://www.nytimes.com/2016/05/10/opinion/using-tweets-and-posts-to-speed-up-organ-donation.html?action=click&pgtype=Homepage&version=Moth-Visible&moduleDetail=inside-nyt-region-1&module=inside-nyt-region&region=inside-nyt-region&WT.nav=inside-nyt-region&_r=0" target="_blank" rel="noopener">social media to speed up organ donation</a>.<a href="http://www.nytimes.com/2016/05/12/world/europe/periscope-suicide-france.html" target="_blank" rel="noopener">Suicide on Periscope</a> prompts France to open inquiry.Now an online <a href="http://www.techinsider.io/what-is-dead-social-2016-5" target="_blank" rel="noopener">service helps people to prepare their “digital legacy</a>.” Will the “<a href="http://www.sociallyawareblog.com/2015/03/10/who-will-update-my-status-when-im-dead-the-biggest-social-media-platforms-policies-on-deceased-user-accounts/" target="_blank" rel="noopener">social media assets after death</a>” issue never die? (Sorry, we couldn’t resist.)Study finds <a href="http://www.wbal.com/article/163125/110/social-media-manipulation-is-most-common-form-of-sextortion-study-finds" target="_blank" rel="noopener">social media manipulation</a> is the most common form of sextortion.

Social Links—Instagram’s logo change causes a stir; stats on social media use at work; lessons from a YouTube star.

The Great Instagram Logo Freakout of 2016. A UK council policy reportedly grants its members power to spy on residents by setting up fake Facebook profiles. Gue

Social Links—Instagram’s logo change causes a stir; stats on social media use at work; lessons from a YouTube star.

We’re trying something new here at Socially Aware: In addition to our usual social-media and tech-law analyses and updates, we’re going to end each work week with a list of links to interesting social media stories around the Web, primarily things that caught our eye during the week that we may or may not ultimately write about in a future blog post.Here’s our first list – enjoy!<a href="http://bit.ly/1VqenvJ">Should prisoners be allowed to have Facebook pages?</a>Why do older people love Facebook? A New York Times writer <a href="http://nyti.ms/1VnG7RM" target="_blank" rel="noopener">asked her 61-year-old dad.</a>Judge<a href="http://bit.ly/1SbGoS1" target="_blank" rel="noopener"> upholds ex-cop’s murder conviction </a>despite defense’s claim that juror’s Facebook posts evidenced a dislike for police.The CIA’s venture capital arm is <a href="http://bit.ly/1qM6HYd" target="_blank" rel="noopener">investing</a> in companies that develop artificial intelligence to sift through enormous numbers of social media postings and decipher patterns.Another cringe-worthy social media marketing campaign gaffe, this time by KFC Australia.Facebook will now allow businesses to <a href="http://tcrn.ch/1VmdG7s" target="_blank" rel="noopener">deliver automated customer support through chatbots</a>.

Social Links: A social media marketing fail; Facebook and prisoners, jurors, older people

We’re trying something new here at Socially Aware: In addition to our usual social-media and tech-law analyses and updates, we’re going to end each work week wi

Social Links: A social media marketing fail; Facebook and prisoners, jurors, older people

Today’s companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. “Social currency,” as <a href="http://vivaldipartners.com/vpsocialcurrency/about" target="_blank" rel="noopener">some researchers call it</a>, is becoming increasingly important and companies are <a href="http://www.bizjournals.com/triangle/news/2015/02/18/duke-fuqua-business-cmo-survey-social-media-budget.html" target="_blank" rel="noopener">investing heavily</a> in building their social media fan bases. In some cases, this commitment of time, money and resources has resulted in staggering success. Coca-Cola, for example, has <a href="https://www.facebook.com/cocacola" target="_blank" rel="noopener">amassed over 96 million likes</a> on its Facebook page and LEGO’s YouTube videos have been <a href="https://www.youtube.com/user/LEGO/about" target="_blank" rel="noopener">played over 2 billion times</a>.With such impressive statistics, there is no question that a company’s social media presence and the associated pages and profiles can be highly valuable business assets, providing an important means for disseminating content and connecting with customers. But how much control does a company really have over these social media assets? What recourse would be available if a social media platform decided to delete a company’s page or migrate its fans to another page?The answer may be not very much. Over the past few years, courts have repeatedly found in favor of social media platforms in a number of cases challenging the platforms’ ability to delete or suspend accounts and to remove or relocate user content.Legal Show-Downs on Social Media Take-DownsIn a recent California case, <a href="http://www.bloomberglaw.com/public/desktop/document/Lewis_v_YouTube_LLC_No_H041127_2015_BL_428281_Cal_App_6th_Dist_De?1456536437" target="_blank" rel="noopener">Lewis v. YouTube, LLC</a>, the plaintiff Jan Lewis’s account was removed by YouTube due to allegations that she artificially inflated view counts in violation of YouTube’s Terms of Service. YouTube eventually restored Lewis’s account and videos but not the view counts or comments that her videos had generated prior to the account’s suspension.Lewis sued YouTube for breach of contract, alleging that YouTube had deprived her of her reasonable expectations under the Terms of Service that her channel would be maintained and would continue to reflect the same number of views and comments. She sought damages as well as specific performance to compel YouTube to restore her account to its original condition.The court first held that Lewis could not show damages due to the fact that the YouTube Terms of Service contained a limitation of liability provision that disclaimed liability for any omissions relating to content. The court also held that Lewis was not entitled to specific performance because there was nothing in the Terms of Service that required YouTube to maintain particular content or to display view counts or comments. Accordingly, the court affirmed dismissal of Lewis’s complaint.In a similar case, <a href="https://docs.justia.com/cases/federal/district-courts/california/candce/5:2015cv03221/289340/27" target="_blank" rel="noopener">Darnaa LLC v. Google, Inc.</a>, Darnaa, a singer, posted a music video on YouTube. Again, due to allegations of view count inflation, YouTube removed and relocated the video to a different URL, disclosing on the original page that the video had been removed for violating its Terms of Service. Darnaa sued for breach of the covenant of good faith and fair dealing, interference with prospective economic advantage and defamation. In an email submitted with the complaint, Darnaa’s agent explained that she had launched several large campaigns (each costing $250,000 to $300,000) to promote the video and that the original link was already embedded in thousands of websites and blogs. Darnaa sought damages as well as an injunction to prevent YouTube from removing the video or changing its URL.The court dismissed all of Darnaa’s claims because YouTube’s Terms of Service require lawsuits to be filed within one year and Darnaa had filed her case too late. In its discussion, however, the court made several interesting points. In considering whether YouTube’s Terms of Service were unconscionable, the court held that, although the terms are by nature a “contract of adhesion,” the level of procedural unconscionability was slight, since the plaintiff could have publicized her videos on a different website. Further, in ruling that the terms were not substantively unconscionable, the court pointed out that “[b]ecause YouTube offers its hosting services free of charge, it is reasonable for YouTube to retain broad discretion over [its] services.”Although the court ultimately dismissed Darnaa’s claims based on the failure to timely file the suit, the decision was not a complete victory for YouTube. The court granted leave to amend to give Darnaa the opportunity to plead facts showing that she was entitled to equitable tolling of the contractual limitations period. Therefore, the court went on to consider whether Darnaa’s allegations were sufficient to state a claim. Among other things, the court held that YouTube’s Terms of Service were ambiguous regarding the platform’s rights to remove and relocate user videos in its sole discretion. Thus, the court further held that if Darnaa were able to amend the complaint to avoid the consequences of the failure to timely file, then the complaint would be sufficient to state a claim for breach of the contractual covenant of good faith and fair dealing.By contrast, the court found no such ambiguity in <a href="https://casetext.com/case/song-fi-inc-v-google-inc" target="_blank" rel="noopener">Song Fi v. Google Inc.</a>, a case with facts similar to those in Darnaa. In Song Fi, the plaintiff asserted claims for, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. YouTube raised a defense under the <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Communications Decency Act (CDA) Section 230(c)(2)(A)</a> which states that no provider of an interactive computer service is liable for removing content that it considers to be obscene, violent, harassing or “otherwise objectionable.”The Song Fi court, interpreting this provision narrowly, found that although videos with inflated view counts could be a problem for YouTube, they are not “otherwise objectionable” within the meaning of Section 230(c)(2)(A), and thus YouTube did not have immunity under that provision. Specifically, the court concluded that, in light of the CDA’s history and purpose, the phrase “otherwise objectionable” relates to “potentially offensive material, not simply any materials undesirable to a content provider or user.” Further, the requirement that the service provider subjectively finds the blocked or screened material objectionable “does not mean anything or everything YouTube finds subjectively objectionable is within the scope of Section 230(c).” Therefore, the court held that videos with inflated view counts fell outside the statutory safe harbor granted by Section 230(c)(2).Despite finding Section 230(c)(2) inapplicable, the court ultimately dismissed all of Song Fi’s claims. Notably, the court dismissed the contract-based claims with prejudice, holding that, although YouTube’s Terms of Service were “inartfully drafted,” they “unambiguously” reserved to the right for YouTube to remove content in its sole discretion and to discontinue any aspect of its service without liability. Therefore, the court held, the Terms of Service “unambiguously foreclose[d]” Song Fi’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing.Facebook had more luck than did Google in asserting a CDA Section 230 defense in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2089&context=historical" target="_blank" rel="noopener">Sikhs For Justice “SFJ”, Inc. v. Facebook, Inc.</a>, a case brought by a human rights group advocating for Sikh independence in the Indian state of Punjab. Sikhs for Justice (SFJ) alleged that Facebook had blocked its page in India at the behest of the Indian government. SFJ sued in the Northern District of California, asserting several causes of action including race discrimination, and sought damages and injunctive relief.The Sikhs for Justice court ruled in favor of Facebook, citing CDA Section 230(c)(1), which states that “no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Based on this statutory language, Section 230(c)(1) has been interpreted to provide a broad immunity for website operators against liability arising from user generated content. In dismissing the suit, the Sikhs for Justice court explained that the content at issue was provided by SFJ, not by Facebook, and that Facebook’s refusal to publish the SFJ page in India was “clearly publisher conduct” that is immunized by Section 230(c)(1).Notably, the court did not mention the Section 230(c)(2) safe harbor for blocking user content, which YouTube had asserted in SongFi as discussed above. <a href="http://blog.ericgoldman.org/archives/2015/11/facebook-can-legally-block-pages-without-any-explanation-sikhs-for-justice-v-facebook-forbes-cross-post.htm" target="_blank" rel="noopener">According to some commentators, </a> the Sikhs for Justice court’s failure to discuss Section 230(c)(2) “highlights its weakness as a safe harbor.”In another case against Facebook, <a href="http://blog.ericgoldman.org/archives/2010/11/facebook_not_li_2.htm" target="_blank" rel="noopener">Young v. Facebook, Inc.</a>, the plaintiff, Karen Beth Young, found herself suddenly banned from Facebook after sending friend requests to strangers. She sued for breach of the implied covenant of good faith and fair dealing as well as several other claims. In contrast to some of the cases discussed above, the Young court found that “it is at least conceivable that arbitrary or bad faith termination of user accounts … with no explanation at all could implicate the implied covenant of good faith and fair dealing,” particularly since Facebook had provided in its Statement of Rights and Responsibilities that users’ accounts should not be terminated for reasons other than those described in the Statement. Nonetheless, the court dismissed Young’s suit because her complaint did not sufficiently allege that the account termination was undertaken in bad faith or violated Facebook’s contractual obligations.The cases above illustrate how difficult it is for social media users to object to deletion or suspension of accounts or to removal or relocation of content based on a platform’s contractual obligations under the applicable terms of service. Users have met with similar obstacles in asserting a property right in social media content.For example, <a href="https://www.docketalarm.com/cases/Florida_Southern_District_Court/0--13-cv-61582/Mattocks_v._Black_Entertainment_Television_LLC/101/" target="_blank" rel="noopener">Mattocks v. Black Entertainment Television LLC</a> (which we have <a href="http://www.sociallyawareblog.com/2014/11/04/whats-in-a-like/" target="_blank" rel="noopener">discussed previously</a>) involved a dispute between BET and Stacey Mattocks, whom BET had hired to help manage the unofficial Facebook fan page for one of its shows. When Mattocks restricted BET’s access to the fan page, BET asked Facebook to “migrate” the fans to another official page that BET had created and Facebook granted the request. Mattocks sued BET for conversion of her business interest in the Facebook fan page. The court, holding that Mattocks failed to establish that she owned a property interest in the page’s likes, granted BET’s motion for summary judgment. “If anyone can be deemed to own the ‘likes’ on a Facebook page,” the court stated, “it is the individual users responsible for them.” While the Mattocks case did not directly target the social media platform itself, it does demonstrate how difficult it can be for a plaintiff to challenge social media platforms’ decisions to remove or relocate content based on purported ownership of that content.Safeguarding Your Social Media CurrencyUltimately, the cases discussed above show that social media platforms have significant control over what is (or isn’t) published on their websites, regardless of the amount of time and effort that users have spent building up their individual pages and profiles. With all of this in mind, what can individuals and companies do to protect their social media currency? How can you help ensure that your hard-earned fans, likes, comments and views do not suddenly disappear?A good tip is to read the applicable terms of service carefully to understand the platform’s rules and the reasons for which a platform may delete or suspend accounts or remove or relocate content. Make sure to comply with the platform’s rules, including those regarding contests, collection and use of user information and content guidelines. Users should err on the side of caution, and avoid posting anything that could be deemed offensive or obscene or that might infringe upon other parties’ intellectual property rights. And it goes without saying that users should avoid fraudulent practices, such as artificially driving up view counts or posting fake comments.Most of all, businesses and individuals should keep in mind that social media platforms have broad discretion when it comes to decisions about what to publish and where. As such, consider spreading your company’s social media marketing efforts across a number of different platforms to minimize the impact of sudden content removals or relocations on any one platform. At the end of the day, every social media account—even those with millions of likes or views—is controlled not by the user that created the account but by the platform that hosts it.

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How to Protect Your Company’s Social Media Currency

How to Protect Your Company’s Social Media Currency

Today’s companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. “Social currency,” as some researchers call it

January is the month when lists—lists of predictions, lists of trends, lists of feats and lists of failures—pervade social media newsfeeds and publications’ headlines. Here at Socially Aware we’re making an annual tradition of curating a “List of Lists”—an inventory of the roundups that we think will be of most interest to our readership.We’ll update this page throughout the month as additional pertinent content is published.Happy 2016!<h3>Apps</h3><a href="http://www.pcmag.com/article2/0,2817,2391521,00.asp" target="_blank" rel="noopener">The 100 Best iPhone Apps of 2016</a><a href="http://www.pcmag.com/article2/0,2817,2393097,00.asp" target="_blank" rel="noopener">The 100 Best Android Apps of 2016</a><h3>Social Media (General)</h3><a href="http://www.cnbc.com/2015/12/31/whats-ahead-for-social-media-in-2016.html" target="_blank" rel="noopener">What’s ahead for social media in 2016?</a><a href="https://econsultancy.com/blog/67325-11-pivotal-social-media-trends-for-2016/" target="_blank" rel="noopener">11 pivotal social media trends for 2016</a><a href="http://www.huffingtonpost.com/layla-revis/social-media-trends-2016_b_8914190.html" target="_blank" rel="noopener">Social Media Trends 2016</a><a href="http://fortune.com/2015/12/23/2016-social-media-facebook/" target="_blank" rel="noopener">Virtual Reality Takes Off and 4 Other Social Media Trends in 2016</a><a href="http://www.forbes.com/sites/ilyapozin/2014/12/17/15-social-media-companies-to-watch-in-2015/" target="_blank" rel="noopener">Social Media Sites You’ll Be Seeing More of in 2016</a><a href="http://www.nbcnews.com/politics/politics-news/beyond-twitter-other-social-media-platforms-2016-candidates-are-using-n481181" target="_blank" rel="noopener">Beyond Twitter: The Other Social Media Platforms 2016 Candidates Are Using</a><h3>Social Media Content</h3>Top 10 social media misfires of 2015Top Social Media Stories of 2015<a href="http://blogs.wsj.com/washwire/2015/12/07/top-social-media-moments-of-2015/" target="_blank" rel="noopener">Twitter’s Top Social Media Moments of 2015</a><h3>Digital & Social Media Marketing</h3><a href="http://www.theguardian.com/media-network/2016/jan/05/brands-social-media-marketing-2016" target="_blank" rel="noopener">Five things great brands will do differently on social media in 2016</a>20 Things Social Media Professionals Can’t Ignore In 2016<a href="http://blog.hootsuite.com/social-media-skills-2016-podium/" target="_blank" rel="noopener">Skills Social Media Managers Will Need in 2016</a>From Likes To Tweets: Marketing Land’s Top Social Media Marketing Columns Of 2015<a href="http://heidicohen.com/2016-social-media-marketing-plan/" target="_blank" rel="noopener">10 Steps To Improve Your 2016 Social Media ROI</a><a href="https://contently.com/strategist/2016/01/04/21-content-marketing-predictions-for-2016/?utm_source=contently&utm_medium={contently}" target="_blank" rel="noopener">21 Content Marketing Predictions for 2016</a><h3>Legal Tech</h3><a href="http://www.lawsitesblog.com/2015/12/the-10-most-important-legal-technology-developments-of-2015.html" target="_blank" rel="noopener">The 10 Most Important Legal Technology Developments of 2015</a><a href="http://abovethelaw.com/2015/12/4-legaltech-trends-to-watch-for-in-2016/" target="_blank" rel="noopener">4 Legal Tech Trends To Watch For In 2016</a><a href="https://bol.bna.com/what-technologies-will-most-affect-big-law-in-2016/" target="_blank" rel="noopener">What Technologies Will Most Affect Big Law in 2016?</a><h3>Startups</h3><a href="https://www.cbinsights.com/blog/startup-failure-post-mortem/" target="_blank" rel="noopener">146 Startup Failure Post-Mortems</a><a href="http://venturebeat.com/2015/12/28/15-interesting-startups-to-watch-in-2016/" target="_blank" rel="noopener">15 interesting startups to watch in 2016</a><a href="http://www.ceoblognation.com/2015/12/15922/" target="_blank" rel="noopener">10 Business Trends for 2016 Success </a><h3>Tech, Privacy and Social Media Law</h3><a href="http://www.corpcounsel.com/id=1202746471373?keywords=privacy+stories&publication=CC+Corporate+Counsel" target="_blank" rel="noopener">Five Privacy and Security Stories That Mattered in 2015</a>Wired.com’s Predictions on the Intersection of Technology and the Law in 2016<a href="http://www.bbc.com/news/business-35220442" target="_blank" rel="noopener">Tech trends 2016: Cybersecurity in the connected world</a>

Our List of Lists

January is the month when lists—lists of predictions, lists of trends, lists of feats and lists of failures—pervade social media newsfeeds and publications’ hea

Our List of Lists

“Native advertising”—ads that may blur the distinction between advertising and editorial, video or other content—has been a hot topic in recent years for both marketers and regulators. It is popular with marketers because it is apparently an effective advertising model. The Federal Trade Commission (FTC), on the other hand, contends that it may be deceptive when the advertising content is not readily identifiable to consumers as such, and it has just issued guidance on how advertisers can stay on the right side of the law. On December 22, 2015, the FTC released an <a href="https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf" target="_blank" rel="noopener">Enforcement Policy Statement on Deceptively Formatted Advertisements</a> that focuses in particular on “native” advertising, along with <a href="https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses" target="_blank" rel="noopener">guidance for businesses on native advertising</a> that further fleshes out the FTC’s expectations.The Enforcement Policy Statement defines “natively formatted advertising” as communications “that match the design, style, and behavior of the digital media in which it is disseminated.” For example, an advertisement may be integrated into a newspaper website, with a “headline” and then a few lines of text, so that it appears similar to substantive, publisher-generated news articles posted on the website. Native advertisements may also appear on social media platforms and may be delivered as videos or through other media.Regardless of format, the rule is the same. As the Statement puts it:Deception occurs when an advertisement misleads reasonable consumers as to its true nature or source, including that a party other than the sponsoring advertiser is the source of an advertising or promotional message, and such misleading representation is material.In light of this principle, the FTC may deem an advertisement that looks like an ordinary news article to be deceptive if consumers are not provided with sufficient information to differentiate the advertisement from publisher-generated, non-advertising content. This information may be inherent in the nature of the advertisement, or it may require a separate disclosure indicating that the advertisement is a marketing communication. For example, in <a href="https://www.ftc.gov/enforcement/cases-proceedings/112-3072/coulomb-media-inc-et-al" target="_blank" rel="noopener">FTC v. Coulomb Media, Inc.</a>, as well as other cases, the FTC alleged that defendants deceptively used fake news websites to market açai berry products. Similarly, and more recently, in <a href="https://www.ftc.gov/enforcement/cases-proceedings/132-3152/nourishlife-llc" target="_blank" rel="noopener">FTC v. NourishLife, LLC</a>, the FTC alleged that the defendants misrepresented that a so-called research website was an independent source for information about the speech disorder apraxia, when in fact the website advertised the health benefits of the company’s products.A disclosure may be important because, even if the substance of the natively formatted advertisement is not deceptive, the nature of the advertisement itself can be deceptive. In this regard, the FTC has recently brought enforcement actions and warned about advertising that appears to be user-generated commentary about a product or service but is in fact marketing content created by or on behalf of an advertiser. You can read more about these enforcement actions <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">here</a> and <a href="http://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">here</a>.To put it another way, the Enforcement Policy Statement holds that “an ad is deceptive if it promotes the benefits and attributes of goods and services, but is not readily identifiable to consumers as an ad.” But what, exactly, does that mean? The Policy Statement and the guide for businesses offer some considerations of what may make an advertisement “readily identifiable.” The guidance lists 17 mini case studies that provide examples of what does and does not require a disclosure. (The fact that 17 examples are necessary suggests the potential complexity in determining what does or does not constitute an advertisement that requires a disclosure.) The recurring theme of the examples is whether the consumer can reasonably ascertain that the advertisement is paid marketing material and not content organically generated by the publisher (or by a user in the case of social media or video-hosting websites).For cases in which native advertising requires a disclosure, the new guidance recaps the FTC’s <a href="https://www.ftc.gov/tips-advice/business-center/guidance/com-disclosures-how-make-effective-disclosures-digital" target="_blank" rel="noopener">.com Disclosures</a> guidance for businesses, which lays out basic requirements for making “clear and prominent” disclosures. The guidance also adds some new considerations, such as the need to disclose that the native content is advertising near the focal point of the ad, or in front of or above the “headline” of the native advertisement. (This disclosure needs to convey to the consumer that the material is advertising before the consumer clicks through the ad to the main advertising page.) In addition, the guidance suggests that, for multimedia ads (such as videos), the disclosure should be made in the video itself before the consumer receives the advertising message. That is, if the advertisement is only a small part of the overall video, the disclosure must be “delivered as close as possible to the advertising messag[e]” itself. Finally, the guidance affirms that the disclosures should include terms likely to be understood, such as “Ad,” “Advertisement,” or “Paid Advertisement,” and not terms such as “Promoted” or “Sponsored,” which are ambiguous in this context and could imply, for example, that a sponsoring advertiser funded the content but did not create or influence it.As the FTC continues to scrutinize various mechanisms for delivering advertising online, companies should make sure that consumers are aware when they are being marketed to, even as the participants in the digital advertising ecosystem come up with new and innovative ways to deliver those marketing messages. All participants, including the companies whose products are being marketed, are potentially at risk of an FTC enforcement action if their advertisements are found to be deceptive, and thus every participant should pay heed to the FTC’s recent statements and guidance. In light of the FTC’s aggressive approach in this area, making sure that innovative forms of advertising meet the FTC’s timeless disclosure standards should be on every company’s radar.

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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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An FTC Warning on Native Advertising

An FTC Warning on Native Advertising