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

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We’re happy to publish our latest infographic, which highlights key social media marketing trends for both B2B and B2C companies. Among other things, the infographic points out that, although companies continue to increase their social media marketing spend, they don’t do a particularly good job at engaging consumers through social media, and they still struggle to determine the return on their investment. Enjoy! And please feel free to share this infographic with your marketing colleagues.

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Infographic: Social Media Marketing

We’re happy to publish our latest infographic, which highlights key social media marketing trends for both B2B and B2C companies. Among other things, the infogr

Infographic: Social Media Marketing

Online sales on the Monday after Thanksgiving weekend—Cyber Monday—have <a href="http://www.statista.com/statistics/194643/us-e-commerce-spending-on-cyber-monday-since-2005/" target="_blank" rel="noopener">continued to increase</a> year over year since the <a href="http://www.tomsguide.com/us/what-is-cyber-monday,review-1953.html" target="_blank" rel="noopener">day was first christened “Cyber Monday” in 2004</a>. As social media enthusiasts, we were surprised to learn that social networks drove only 1.5% of the avalanche of online orders placed on Cyber Monday in 2014.Social media platforms, however, are poised to become much more important players in Cyber Monday 2015.Indeed, many industry experts are considering this holiday season “<a href="http://www.cnbc.com/2015/11/24/can-facebook-twitter-win-on-cyber-monday.html" target="_blank" rel="noopener">a testing ground for social commerce</a>,” as Facebook, Twitter, Pinterest and Instagram are at various stages of implementing the “buy button”—a feature that allows social media users to purchase products they see in the brand posts that appear in their feeds without even leaving the platform.Because Facebook’s buy button program is still in its early stages, only a small group of retailers are involved, and Facebook users might not even see a buy button on Monday. Pinterest’s buy button program is <a href="https://www.sociallyawareblog.com/2015/07/09/status-updates-driving-while-social-a-small-countrys-facebook-ban-and-pinterests-new-purchasing-feature/" target="_blank" rel="noopener">much further along</a>, however, and now features <a href="http://www.cnbc.com/2015/11/24/can-facebook-twitter-win-on-cyber-monday.html" target="_blank" rel="noopener">more than 10,000 businesses</a>, some of which are reaping great benefits as a result of their partnership with the online pinboard.How Monday’s buy button results will affect marketers’ social media efforts in the future remains to be seen. In the meantime, here’s a rundown of consumer behavior on Cyber Monday last year:<ul><li>U.S. online sales amounted to more than <a href="http://www.usatoday.com/story/money/business/2014/12/01/cyber-week-deals-begin/19733541/" target="_blank" rel="noopener">$2 billion</a>, up from $1.74 billion in 2013</li><li>23.9% of sales originated through email marketing</li><li>Online search results that were paid for by retailers generated 18.8% of sales</li><li>Online search results that were paid for by retailers generated 16% of sales</li><li>Average value of online purchases originating from Facebook: $123</li><li>Average value of online purchases originating from Pinterest: $97</li><li>There were <a href="http://www.forbes.com/sites/ianmorris/2014/12/01/apple-samsung-ea-and-microsoft-were-black-friday-and-cyber-monday-winners" target="_blank" rel="noopener">339,959</a> discussions about Cyber Monday on social media, a 75% increase over 2013</li><li>The brands mentioned most often were <a href="http://www.forbes.com/sites/ianmorris/2014/12/01/apple-samsung-ea-and-microsoft-were-black-friday-and-cyber-monday-winners/" target="_blank" rel="noopener">Amazon, Etsy, Motorola and EA</a></li></ul>Of course, as we noted in an <a href="https://www.sociallyawareblog.com/2015/11/24/black-friday-its-not-just-about-brick-mortar-stores-anymore/" target="_blank" rel="noopener">earlier post</a>, in recent years consumers have started their online shopping earlier in the holiday weekend. As more Americans have access to high-speed Internet connections at home, they no longer need to wait until arriving at work on the Monday after Thanksgiving to do their online binge purchasing. In fact, online sales on Black Friday—the day after Thanksgiving famous for long lines at brick & mortar retail stores—increased 26% in 2014 over 2013.So, even if social media is successful in goosing Cyber Monday sales this year, will Cyber Monday itself increasingly be viewed as a relic of an earlier age, having been pushed up to merge with Black Friday?

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Cyber Monday, Social Commerce and the End of an Era

Cyber Monday, Social Commerce and the End of an Era

Online sales on the Monday after Thanksgiving weekend—Cyber Monday—have continued to increase year over year since the day was first christened “Cyber Monday” i

Here at Socially Aware, we’re focused on Thanksgiving dinner, but we’re well aware that the day after Thanksgiving—Black Friday—is one of the busiest shopping days of the year, and a critical sales day for brick-and-mortar retailers. So we were intrigued to stumble upon some statistics indicating that, although U.S. consumers are still interested in scoring retail bargains on Black Friday, they increasingly prefer to do it from the comfort of their living room sofas. Here, a rundown of consumer behavior on Black Friday last year:<ul><li>At U.S. brick-and-mortar stores, consumers spent just over $9 billion. That was a <a href="https://www.sociallyawareblog.com/wp-admin/52%20percent%20of%20all%20US%20internet%20traffic">7% decline</a> from 2013</li><li>Online sales amounted to $1.5 billion, <a href="http://techcrunch.com/2014/12/01/u-s-thanksgiving-black-friday-sales-break-1b-total-holiday-spend-online-will-be-89b">up 26%</a> over 2013</li><li>Due to heavy traffic, the e-commerce sites of Best Buy Co. Inc. and outdoor gear retailer Cabela’s Inc. <a href="https://www.internetretailer.com/2014/11/28/black-friday-entices-online-shoppers">both went down</a> for a while that day</li><li>Referrals from Facebook resulted in orders averaging <a href="https://www.internetretailer.com/2014/11/28/black-friday-entices-online-shoppers">$109.94</a></li><li>Referrals from Pinterest resulted in orders averaging <a href="https://www.internetretailer.com/2014/11/28/black-friday-entices-online-shoppers">$100.23</a></li></ul>In our next post, we’ll take a look at Black Friday’s hipper younger brother, <a href="http://www.ibtimes.com/where-did-black-friday-cyber-monday-come-349365" target="_blank" rel="noopener">Cyber Monday</a>.

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Black Friday: It’s Not Just About Brick & Mortar Stores Anymore

Black Friday: It’s Not Just About Brick & Mortar Stores Anymore

Here at Socially Aware, we’re focused on Thanksgiving dinner, but we’re well aware that the day after Thanksgiving—Black Friday—is one of the busiest shopping d

Bad reviews. On September 30th, the soon-to-be-launched app Peeple was described by the app’s co-founder, Julia Cordray, as a “<a href="https://www.linkedin.com/pulse/julia-cordray-ceo-peeple-creating-worlds-largest-app-julia-cordray" target="_blank" rel="noopener">Yelp for people</a>,” that is, a people-rating platform that would allow users to assign number ratings to anyone—anyone at all, fellow Peeple user or not—as long as the critic was 21, had an established Facebook account, used his real name, and could provide his subject’s cell phone number. The Washington Post <a href="https://www.washingtonpost.com/news/the-intersect/wp/2015/09/30/everyone-you-know-will-be-able-to-rate-you-on-the-terrifying-yelp-for-people-whether-you-want-them-to-or-not/" target="_blank" rel="noopener">reported</a> that “you can’t opt out—once someone puts your name in the Peeple system, it’s there unless you violate the site’s terms of service. And you can’t delete bad or biased reviews—that would defeat the whole purpose.” But by <a href="https://www.linkedin.com/pulse/julia-cordray-ceo-peeple-creating-worlds-largest-app-julia-cordray" target="_blank" rel="noopener">October 4th Cordray had changed her tune</a> entirely, describing Peeple as a “positive only app” that will not allow a review to appear until it has been explicitly approved by the subject of the review. An outraged public can take credit for Cordray’s about-face. In the comments section of the <a href="https://www.washingtonpost.com/news/the-intersect/wp/2015/09/30/everyone-you-know-will-be-able-to-rate-you-on-the-terrifying-yelp-for-people-whether-you-want-them-to-or-not/" target="_blank" rel="noopener">Washington Post</a> piece in which Cordray described Peeple’s original iteration, many readers expressed fear and disgust at the prospect of a site that would doubtless facilitate cyberbullying and, for some, encourage crippling self-consciousness. In other words, the very online lynch mob whose power Cordray hoped to profit from wound up turning on her. The irony of that <a href="https://www.linkedin.com/pulse/peeple-human-rating-app-bad-idea-you-might-still-missing-bariso?trk=hp-feed-article-title-channel-add" target="_blank" rel="noopener">did not go unnoticed</a>. Cordray’s new version of Peeple, which she <a href="https://www.linkedin.com/pulse/julia-cordray-ceo-peeple-creating-worlds-largest-app-julia-cordray" target="_blank" rel="noopener">promises</a> will be part of a “positive revolution” designed to fight back against the kind of online negativity she faced after the <a href="https://www.washingtonpost.com/news/the-intersect/wp/2015/09/30/everyone-you-know-will-be-able-to-rate-you-on-the-terrifying-yelp-for-people-whether-you-want-them-to-or-not/" target="_blank" rel="noopener">Washington Post</a> piece was published, is expected to launch before the end of the year.Picture perfect. Any social media marketing plan necessarily includes <a href="http://conversionxl.com/social-media-strategy-doesnt-rely-hope-getting-results/" target="_blank" rel="noopener">these two goals</a>: Identify your target audience, and attract and engage that audience with compelling content. We’ve <a href="https://www.sociallyawareblog.com/2015/08/27/status-updates-appeals-court-upholds-anti-cyberbullying-law-better-marketing-through-neural-networks-restaurant-owner-turns-the-tables-on-yelp-critic/" target="_blank" rel="noopener">written</a> about how neural networks are facilitating marketers’ use of photographs to help find target audiences by automatically identifying the products being used and the activities being undertaken by the subjects of photos posted to social media. Now, companies like EyeEm Mobile GmbH and Neon Labs Inc. are rolling out software to help marketers choose photographs that will engage those audiences with attractive content. The technology that these companies have developed automatically identifies images with qualities that potential customers are likely to find compelling. The software, <a href="http://www.wsj.com/articles/new-software-sifts-the-tide-of-online-images-1443722371" target="_blank" rel="noopener">according to the Wall Street Journal</a>, identifies “patterns common to images selected by professional photographers” or “characteristics shown to trigger brain activity in neuroscience experiments.” The human eye has proven to be more attracted to photographs in which the subject appears to be speaking in mid-sentence, for example, or in which the subject appears to be attracted to something happening offscreen. Since EyeEm debuted two months ago, the startup’s customers have enjoyed a 30% increase in interaction with their online content. The software works for online video posts, too, helping companies to select the most compelling frames for posting. Neon Labs reports that its partners and customers “made 16% to 40% more revenue on their videos due to increased clicks.”The powers that tweet. Twitter has a handbook explaining its platform to people running for elected office and it runs just under 140 characters pages. That’s right, the social media company notorious for its draconian limit on post lengths took 136 pages to “make sure that people feel empowered with the full story of what Twitter is,” according to <a href="http://www.npr.org/sections/itsallpolitics/2015/09/30/443128829/twitter-has-a-136-page-handbook-for-politicians-140-character-tweets?utm_medium=RSS&utm_campaign=news" target="_blank" rel="noopener">NPR’s interview</a> with Bridget Coyne, one of the people responsible for the manual’s compilation. Coyne told NPR that the creators of the “wildly popular” guide went into painstaking detail explaining how the platform works because they “didn’t want to make assumptions.” Still, it’s difficult to comprehend how the manual’s target audience—whom Coyne says includes congresspersons, chiefs of staff and Congressional interns—aren’t likely to be insulted by a manual that dedicates whole pages to topics such as, for example, “The Anatomy of a Tweet,” complete with numbered illustrations pointing out which part of a Twitter post constitutes the “profile photo” and which part is defined as the “tweet text.” Nevertheless, Coyne insists that Twitter continues to get positive feedback about the manual, and says she hopes to eventually publish a second version of it explaining new Twitter features like <a href="https://en.wikipedia.org/wiki/Periscope_(app)" target="_blank" rel="noopener">Periscope</a>. Does all this mean an end to political scandals due to Twitter misuse? Count us skeptical.

Status Updates: People-rating app proves unpopular; new tech automates compelling-photo selection; Twitter 101 for the political class

Bad reviews. On September 30th, the soon-to-be-launched app Peeple was described by the app’s co-founder, Julia Cordray, as a “Yelp for people,” that is, a peop

Status Updates: People-rating app proves unpopular; new tech automates compelling-photo selection; Twitter 101 for the political class

Vloggers have become the reality stars of our times. For an increasing number of social media users, what was once a hobby is now a lucrative career. You may be surprised to learn that Felix Kjellberg (aka “PewDiePie”), a 25-year-old Swedish comedian and the world’s most popular YouTube star, is reported to have earned $8.5 million in 2014.The UK has its own vlogger superstars in the form of Zoella and Alfie Deyes. Together, this power couple of social media has amassed 12 million YouTube subscribers, 6.8 million Instagram followers and almost 6 million Twitter followers. Zoe Suggs (aka “Zoella”), 25, started vlogging in 2009 and has since become a brand in fashion and beauty marketing, publishing a novel and creating a line of products. Alfie, 21, started his Pointless vlog when he was 15 and has since published a series of books. It was even announced earlier this year that tourists will soon be able to see waxworks of Zoella and Alfie at London’s Madame Tussauds. But Zoella and Alfie are not alone; there is now a whole generation of vloggers rivalling film and sports stars in the popularity ranks. Indeed, we now even have a host of social media talent agencies formed to help propel vloggers to superstardom.Vloggers are particularly popular with young people who enjoy the more intimate connection they can have with these approachable idols. Therefore, brands who want to target a young demographic are increasingly keen to work with vloggers. This collaboration typically involves brands paying vloggers to feature in “advertorial vlogs,” i.e., videos created in the usual style of the vlogger, but with the content controlled by the brand.Now, of course, there is nothing inherently wrong with there being a commercial relationship between a brand and a vlogger from a legal perspective. However, particularly where you have the influence of celebrity, plus an impressionable audience, vloggers and brands need to be very careful that they don’t fall foul of consumer protection rules that are in place to protect consumers from unfair advertising practices. In August 2015, the UK advertising regulator issued new guidance to help vloggers and brands be responsible and stay on the right side of the law. In this blog post, we will identify the key issues raised by the guidance. We will also provide an overview of some of the other key legal issues that brands need to be aware of when using social media for marketing and advertising in the UK.<h4>Vlogs</h4><a href="http://www.legislation.gov.uk/ukdsi/2008/9780110811574/contents" target="_blank" rel="noopener">The Consumer Protection from Unfair Trading Regulations 2008</a> (“CPRs”) prohibit certain unfair commercial practices. These include using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear (advertorial).The<a href="https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html" target="_blank" rel="noopener"> Committee of Advertising Practice Code</a> (the “CAP Code”) acts as the rule book for non-broadcast advertisements in the UK and requires that advertising must be legal, decent, honest and truthful. The CAP Code was extended to cover social media in 2011. The Cap Code is enforced by the <a href="https://www.asa.org.uk/Rulings/Adjudications/2015/5/Procter-and-Gamble-(Health-and-Beauty-Care)-Ltd/SHP_ADJ_288449.aspx" target="_blank" rel="noopener">Advertising Standards Authority</a> (“ASA”), the UK regulator responsible for advertising content in the UK. The ASA has the power to remove or have amended any ads that breach the CAP Code.Rule 2.1 of the CAP Code states that marketing communications must be obviously identifiable as such. Rule 2.4 states that marketers and publishers must make clear that advertorials are marketing communications, e.g., by labelling them “advertisement feature.” These rules apply to marketing communications on vlogs in the same way as they would to marketing communications that appear on blogs or other online sites. But as the CAP Executive noted last year, a number of marketers have “fallen foul of the ASA by blurring the line, intentionally or not, between independent editorial content written about a product and advertising copy.”In November 2014, the ASA’s ruling against Mondelez provided a clear example of a brand failing to comply with the CAP Code. Mondelez had engaged five celebrity vloggers to promote its Oreo cookies by participating in a race to lick cream off a cookie as quickly as possible. The channels featuring the vlogs typically contained non-promotional content, and the vlogs failed to clearly indicate the commercial relationship between Mondelez and the vloggers. The reference to “Thanks to Oreo for making this video possible” might indicate that Oreo had been involved in the process, but it did not make clear that the advertiser had paid for and had editorial control over the videos. As a result, the advertorials were banned.In another high-profile case, in May 2015, a YouTube video providing makeup tutorials featuring the popular vlogger Ruth Crilly, who has 300,000 subscribers on YouTube, was banned by the ASA for failing to clearly identify itself as marketing material. The video appeared on the “Beauty Recommended” YouTube channel, which is operated by Procter & Gamble, with the intention of marketing its Max Factor range of products. The ASA stated that the channel page provided “no indication” that it was a Max Factor marketing tool, and emphasized that “it wasn’t clear until a viewer had selected and opened the video that text, embedded in the video, referred to Procter & Gamble….We consider that viewers should have been aware of the commercial nature of the content prior to engagement.”<h4>Guidance</h4>In August 2015, the CAP Code Executive published guidance to help vloggers and brands better understand their obligations under the advertising rules. While the guidance is not binding, it’s a helpful statement of the rules as they apply to vlogs.Advertorial. Where a brand collaborates with a vlogger on a video that is produced by the brand and published on the brand’s website or social media page, this is very likely to be a marketing communication—but it wouldn’t be an advertorial. However, where a vlog is made in the usual style of the vlogger, but the content of the vlog is controlled by the brand and the vlogger has been paid (not necessarily with money) for the vlog, this would be an advertorial. Because the extent of the brand involvement may not be obvious to the viewer, this needs to be made explicit upfront so that viewers are aware that the video is an ad before engaging. Labels such as “ad,” “ad feature,” “advertorial,” or similar are likely to be acceptable, whereas labels such as “sponsored by,” “supported by” and “thanks to X for making this possible” should be avoided, as these would not make it sufficiently clear that the brand had control over the content of the vlog. Viewers should be aware that they are selecting an ad to view before they watch it so that they can make an informed choice. Finding out that something is an ad after having selected it, at the end of a video or halfway through, is not sufficient.Commercial breaks/product placement. In terms of commercial breaks or product placement within a vlog, it needs to be clear when the ad or product placement starts. This could be via onscreen text, a sign, logo or the vlogger explaining that they have been paid to talk about a particular item by the brand.Vlogger-promotion. If the sole content of a vlog is a promotion of the vlogger’s own merchandise, this would not be considered an advertorial. Rather, it would be a marketing communication. The video title should make clear that the video is promoting the vlogger’s products, but it’s unlikely that the vlog itself will need labelling as an ad if it’s clear from the context that it’s a marketing communication.Sponsorship. Where a brand has sponsored a vlog, but the brand has no control over the vlog, this would not be considered an ad and would not be caught by the CAP Code. However, to ensure compliance with the CPRs, the vlogger should give a nod to the sponsor in order to disclose the nature of the commercial relationship.Free Items. Vloggers may be sent free items by a brand. Where there is no condition attached to the item by the brand and the vlogger can choose whether or not to cover the item in a vlog, this would not be an ad caught by the CAP Code. In addition, where the brand provides the vlogger with free products on the condition that they are reviewed independent of any brand input, then, as the brand retains no control over the vlog, the video would not have to be labelled as an advertorial. However, in such circumstances, the vlogger should disclose to consumers that the vlogger has an incentive to talk about the product, along with the nature of the incentive, to ensure compliance with the CPRs.<h4>Other Social Media Marketing</h4>Vlogging isn’t the only aspect of social media marketing that creates compliance challenges, of course. There are other issues that brands need to be aware of when advertising and marketing using social media in the UK. We have outlined some of these below. For issues specific to the UK financial services sector, please see our previous blog post: <a href="https://www.sociallyawareblog.com/2015/03/26/uks-financial-services-regulator-no-hashtags-in-financial-promotions/" target="_blank" rel="noopener">UK’s Financial Services Regulator: No Hashtags in Financial Promotions</a>.Native Advertising (written advertorial). A native ad is advertising that resembles editorial content. Native ads are a popular form of content marketing, but again raise concerns that consumers may not be aware that the content is advertising in breach of the CPRs and Cap Code. <a href="http://www.iabuk.net/resources/standards-and-guidelines/content-and-native-disclosure-guidelines" target="_blank" rel="noopener">Guidance</a> issued in February 2015 by <a href="http://www.iabuk.net/resources/standards-and-guidelines/content-and-native-disclosure-guidelines" target="_blank" rel="noopener">IAB</a> (the UK trade association for digital advertising) advised advertisers to provide consumers with prominently visible visual cues to enable them to understand, immediately, that they are engaging with marketing content that has been compiled by a third party in a native ad format and is not editorially independent. The guidance suggests clear brand logos and the use of different design formatting for native ads. It also advises the publisher or provider of the native ad format to use a reasonably visible label that makes clear that a commercial arrangement is in place.Employee Endorsements. Companies are keen to encourage their employees to use social media and become advocates for the company. However, companies must be careful; if an employee chooses to discuss his or her employer’s brand favorably on social media, then this is likely to be construed as an advert under the CAP Code, even where the employee is acting independently and not at the request of his or her employer. An employee endorsement that is not transparent also runs the risk of breaching the CPRs. Therefore, employees must make clear that they are affiliated with their employer when making any company endorsements on social media. Organizations should also provide employees with clear social media policies and training to avoid any incident of inadvertent advertising.Ads via Twitter and Celebrity Endorsements. As mentioned above, the CPRs and CAP Code require users to be aware that they are viewing an advert. In terms of Twitter, this means that promotional tweets should be accompanied by the hashtag #spon or #ad. This is particularly the case where the advert may not be immediately apparent as a promotional tweet, e.g., where it is in the form of a celebrity endorsement. As with promotions using vloggers, companies are increasingly keen to use celebrities in connection with promotions in order to increase their brand awareness within that celebrity’s group of followers.In March 2012, an advertising campaign by Mars involved reality star Katie Price tweeting about the Eurozone crisis, and soccer player Rio Ferdinand engaging his followers in a debate about knitting. The campaign involved four teaser tweets by each celebrity to focus attention on their Twitter profile (but with no marketing content), culminating with a final tweet that was an image of the celebrity with a Snickers chocolate bar and the line “you’re not you when you’re hungry @snickersUK #hungry#spon.” While the final tweet was clearly labelled as an advert, the ASA ruled that the first four tweets only became marketing communications at the point the fifth and final tweet was sent (as the first four tweets contained no marketing references). As a result, the ASA ruled that the campaign did not breach advertising standards as the fifth tweet (and as such, the entire campaign) was clearly identifiable as an advert.However, Nike was less successful in June 2012. Soccer players Wayne Rooney and Jack Wilshere tweeted “My resolution – to start the year as a champion, and to finish it as a champion… #makeitcount.gonike.me/makeitcount.” While the ASA agreed that the tweets were obviously marketing communications, the reference to the Nike brand was not sufficiently prominent. The tweets also lacked #spon or #ad to signify advertising. As it was not sufficiently clear to all readers that the tweets were part of a marketing campaign, the advertisement was banned.User-Generated Content. Companies also need to be wary when using user-generated content when promoting their brand. For example, companies may be deemed to be advertising if they: (i) provide a link to a user blog that includes positive comments, (ii) re-tweet positive tweets from users, or (iii) allow users to post comments on the company website. To ensure that such content is responsible, accurate and not misleading, harmful or offensive, companies should monitor user-generated content to ensure that the content is appropriate for the likely audience and preserve documentary evidence to substantiate any claims.Advergames. Advergames are online video games that are created in order to promote a brand, product or organization by immersing a marketing message within the game. In May 2012, the ASA published guidance that made clear that advergames will be considered advertising and are subject to the CAP Code. For further discussion on advergames, please see our previous blog post: <a href="https://www.sociallyawareblog.com/2014/12/18/what-are-the-rules-of-the-advergame/" target="_blank" rel="noopener">What Are the Rules of the Advergame in the UK?</a><h4>Conclusion</h4>The key message for organizations who want to use social media in their marketing campaigns is to treat consumers fairly and to be upfront and transparent. But good practice isn’t just about legal compliance, it will also help maintain consumers’ respect for and trust in your brand. If your social media campaign hits the headlines, you want it to be for all of the right reasons.

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How UK Brands That Use Vlogger Endorsements & Social Media for Marketing Can Stay on the Right Side of the Law

How UK Brands That Use Vlogger Endorsements & Social Media for Marketing Can Stay on the Right Side of the Law

Vloggers have become the reality stars of our times. For an increasing number of social media users, what was once a hobby is now a lucrative career. You may be

Positive I.D. The tech world recently took a giant step forward in the quest to create computers that accurately mimic human sensory and thought processes, thanks to Fei-Fei Li and Andrej Karpathy of the Stanford Artificial Intelligence Laboratory. The pair developed a program that identifies not just the subjects of a photo, but the action taking place in the image. Called NeuralTalk, the software captioned a picture of a man in a black shirt playing guitar, for example, as “man in black shirt is playing guitar,” according to <a href="http://www.theverge.com/2015/7/17/8985699/stanford-neural-networks-image-recognition-google-study" target="_blank" rel="noopener">The Verge</a>. The program isn’t perfect, the publication reports, but it’s often correct and is sometimes “unnervingly accurate.” Potential applications for artificial “neural networks” like Li’s obviously include giving users the ability to search, using natural language, through image repositories both public and private (think “photo of Bobby getting his diploma at Yale.”). But the technology could also be used in potentially life-saving ways, such as in cars that can warn drivers of potential hazards like potholes. And, of course, <a href="http://www.socialmediatoday.com/technology-data/aweiner/2015-07-17/computers-can-recognize-your-face-and-soon-theyll-know-what-youre" target="_blank" rel="noopener">such neural networks would be incredibly valuable to marketers</a>, allowing them to identify potential consumers of, say, sports equipment by searching through photos posted to social media for people using products in that category. As we discussed in a <a href="https://www.sociallyawareblog.com/2015/07/07/toward-a-grand-unifying-theory-of-todays-tech-trends/" target="_blank" rel="noopener">recent blog post</a>, the explosive of growth of the Internet of Things, wearables, big data analytics and other hot new technologies is being fueled at least in part by marketing uses—are artificial neural networks the next big thing to be embraced by marketers?Cruel intentions. Laws seeking to regulate speech on the Internet must be narrowly drafted to avoid running afoul of the First Amendment, and <a href="http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3481&context=wmlr" target="_blank" rel="noopener">limiting such a law’s applicability to intentional attempts to cause damage</a> usually improves the law’s odds of meeting that requirement. Illustrating the importance of intent in free speech cases, an <a href="https://www.sociallyawareblog.com/2015/07/22/status-updates-cas-anti-revenge-porn-law-scrapped-civil-rights-claim-against-blogging-prosecutor-dismissed-match-buys-plentyoffish/" target="_blank" rel="noopener">anti-revenge-porn law in Arizona was recently scrapped</a>, in part because it applied to people who posted nude photos to the Internet irrespective of the poster’s intent. Now, a North Carolina Court of Appeals has held that an anti-cyberbullying law is constitutional because it, among other things, only prohibits posts to online networks that are made with “the intent to intimidate or torment a minor.” The court issued the holding in a lawsuit brought by a 19-year-old who was placed on 48 months’ probation and ordered stay off social media websites for a year for having contributed to abusive social media posts that targeted one of his classmates. The teen’s suit alleged that the law he was convicted of violating, <a href="http://nccriminallaw.sog.unc.edu/cyberbullying/" target="_blank" rel="noopener">N.C. Gen. Stat. §14-458.1</a>, is overbroad and unconstitutional. Upholding his conviction, the North Carolina Court of Appeals held, “It was not the content of Defendant’s Facebook comments that led to his conviction of cyberbullying. Rather, his specific intent to use those comments and the Internet as instrumentalities to intimidate or torment (a student) resulted in a jury finding him guilty under the Cyberbullying Statute.”A dish best served cold. Restaurants and other service providers are often without effective legal recourse against Yelp and other “user review” websites when they’re faced with negative—even defamatory—online reviews because Section 230 of the Communications Decency Act (CDA)—<a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">47 U.S. Code § 230</a>—<a href="https://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section-230/" target="_blank" rel="noopener">insulates website operators from liability</a> for content created by users (though there are, of course, <a href="https://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section-230/" target="_blank" rel="noopener">exceptions</a>). That didn’t stop the owner of KC’s Rib Shack in Manchester, New Hampshire, from exacting revenge, however, when an attendee of a 20-person birthday celebration at his restaurant <a href="http://www.grubstreet.com/2015/07/yelp-review-response-karaoke.html?mid=facebook_nymag" target="_blank" rel="noopener">wrote a scathing review on Yelp and Facebook</a> admonishing the owner for approaching the party’s table “and very RUDELY [telling the diners] to keep quiet [since] others were trying to eat.” The review included “#boycott” and some expletives. In response, the restaurant’s owner, Kevin Cornish, replied to the self-identified disgruntled diner’s rant with <a href="https://www.facebook.com/kcsribshack/posts/10152981907933517" target="_blank" rel="noopener">his own review</a>—of her singing. Cornish reminded the review writer that his establishment is “a family restaurant, not a bar,” and wrote, “I realize you felt as though everybody in the entire restaurant was rejoicing in the painful rendition of Bohemian Rhapsody you and your self-entitled friends were performing, yet that was not the case.” He encouraged her to continue her “social media crusade,” including the hashtag #IDon’t NeedInconsiderateCustomers. Cornish’s retort has so far garnered close to 4,000 Facebook likes and has been shared on Facebook more than 400 times.

Status Updates: Appeals court upholds anti-cyberbullying law; better marketing through neural networks; restaurant owner turns the tables on Yelp critic

Positive I.D. The tech world recently took a giant step forward in the quest to create computers that accurately mimic human sensory and thought processes, than

Status Updates: Appeals court upholds anti-cyberbullying law; better marketing through neural networks; restaurant owner turns the tables on Yelp critic

As the number of social media platforms continues to grow, users’ online activity is becoming increasingly divided, requiring social media companies to prove to potential advertisers that they not only have a lot of registered users, but that those users are <a href="http://www.businessinsider.com/social-media-engagement-statistics-2013-12" target="_blank" rel="noopener">engaged and spending a lot of time on their platforms</a>.Having accumulated nearly <a href="https://www.comscore.com/Insights/Presentations-and-Whitepapers/2015/2015-US-Digital-Future-in-Focus" target="_blank" rel="noopener">230 billion minutes of user-time</a>, Facebook is several lengths ahead of the competition in the user engagement race; its users have spent 18x more time on the platform than users of the next-biggest social network, Instagram (which, of course, is owned by Facebook). Despite its clear lead, Facebook seems to be keeping user engagement at the top of its priority list, introducing features that reduce its users’ need to access resources outside the Facebook ecosystem.Take, for example, Facebook’s introduction of “native video.” Native videos are videos that are posted directly to Facebook rather than first being uploaded to another site such as YouTube and then shared on Facebook as links. Native videos on Facebook <a href="http://www.socialbakers.com/blog/2367-native-facebook-videos-get-more-reach-than-any-other-type-of-post" target="_blank" rel="noopener">have been shown</a> to significantly outperform videos shared on Facebook from other sites in terms of engagement.A Facebook feature known as auto-play further increases user engagement by ensuring that Facebook native videos—and only Facebook native videos—automatically play as users scroll down their newsfeeds. After one quarter with the auto-play in place, Facebook experienced a <a href="http://contently.com/strategist/2015/01/26/facebook-and-twitters-native-video-plans-are-about-to-transform-content-marketing-in-a-big-way/" target="_blank" rel="noopener">58% increase in engagement</a>.Now, by testing an <a href="http://www.businessinsider.com/facebook-revamps-notes-to-be-your-next-blogging-platform-2015-8" target="_blank" rel="noopener">update of its “Notes” feature</a>, Facebook may be indicating a desire to keep its users from venturing off the platform to use third-party blogging platforms and personal websites, too.Before 2011, <a href="http://www.theatlantic.com/technology/archive/2015/08/facebook-and-the-personal-press-release-notes-medium/401855/?utm_source=SFFB" target="_blank" rel="noopener">when Facebook statuses were limited to 500 characters</a>, the Notes feature allowed Facebook users to create longer posts that, like their photo albums and favorite book choices, would always be attached to their profiles. Since Facebook has significantly loosened up its character limits, the purpose of Notes has been unclear.But Facebook recently updated Notes to allow users to create posts with a more sophisticated look and an accompanying picture. The updated Notes was <a href="http://www.theverge.com/2015/8/17/9164681/facebook-notes-are-still-alive-blogging-platform" target="_blank" rel="noopener">described by a Facebook spokesperson</a> as the company’s attempt “to make it easier for people to create and read longer-form stories on Facebook.” Some <a href="http://www.theatlantic.com/technology/archive/2015/08/facebook-and-the-personal-press-release-notes-medium/401855/?utm_source=SFFB" target="_blank" rel="noopener">social media industry observers have suggested</a> that this update is intended to provide users with an alternative to <a href="http://blog.hootsuite.com/3-new-blogging-platforms/" target="_blank" rel="noopener">Medium</a>, a blogging platform favored by those in the technology and media industries.“But that might be too early an assessment,” writes Motherboard’s Clinton Nguyen, “as [the new Notes feature is] a work in progress, the revamp is only available for a handful of users.”Nguyen is right; it’s too early to tell whether social media enthusiasts will want create and read lengthy personal essays on Facebook. One thing is for sure, however: Facebook is not letting up on its efforts to remain the user-engagement king.

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

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“Notes” Update Shows Facebook’s Continued Efforts to Increase Already Impressive User Engagement

“Notes” Update Shows Facebook’s Continued Efforts to Increase Already Impressive User Engagement

As the number of social media platforms continues to grow, users’ online activity is becoming increasingly divided, requiring social media companies to prove to

As a technology law blogger and co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank" rel="noopener">Socially Aware</a>, I monitor emerging developments in information technology. What’s hot in IT today? Any shortlist would have to include social media, mobile, wearable technology, the Internet of Things (IoT), cloud computing and big data.That list is all over the map, right? Or is it? On closer inspection, these technologies are far more closely intertwined than they may appear to be at first glance.So what’s the connection between, say, social media and the Internet of Things? Or wearable tech and cloud computing?Here’s my theory: These technologies all reflect the ceaseless drive by businesses to collect, store and exploit ever more data about their customers. In short, these technologies are ultimately about selling more stuff to us.With this “grand unifying theory” in mind, one sees how these seemingly disparate technologies complement one another. And the legal challenges and risks they pose become clear.Collection of DataLet’s start with the collection of consumer data. Of the six key trends identified above, four relate directly to such collection: social media, mobile, wearable technology and IoT.When we use the Internet, marketers are tracking our activities; the data generated by our online behavior is collected and then used to target ads that will be more relevant to us.If we spend time on movie sites, we’re more likely to see ads promoting new film releases. If we visit food blogs, we’re going to be served ads selling cookware.Creepy? It can be. But such tracking and targeting make it possible for many website operators to offer online content and services for free. Indeed, many believe that such tracking and targeting <a href="http://www.wsj.com/articles/SB10001424052748703748904575411530096840958" target="_blank" rel="noopener">are essential to the vibrancy of our Internet ecosystem</a>. (Although Google is reportedly experimenting with an offering <a href="http://www.fool.com/investing/general/2014/11/30/google-wants-to-know-how-much-youll-pay-for-ad-fre.aspx" target="_blank" rel="noopener">where one would pay not to see ads while surfing the Web</a>.)In the past, serious limitations existed on the ability of marketers to track and target us. We might have given our name, email and home address to a website, but not much else; now, with social media, we routinely volunteer loads of personal information—our jobs, hobbies, special skills, taste in music and movies, even our “relationship status.” And not just information about ourselves, but our families, friends and colleagues as well. As a result, social media companies have compiled huge databases about us—in Facebook’s case, nearly 1.4 billion of us.Also, not long ago, we surfed the Web from either home or office—limiting the ability to be tracked and targeted while away from those locations. The rise of Internet-connected mobile devices has changed all that, of course—now we can access the Web from anywhere, and mobile devices can pinpoint our location, even when we’re not browsing. Marketers can track our daily journey to and from home to work and back again, even serving us “just in time” discount offers as we pass a clothing store or restaurant.From a marketer’s perspective, social media and mobile are all about expanding the amount and type of customer data that can be collected. Thanks to mobile devices and apps, tracking and targeting are no longer desk-bound and can occur even if a customer is not connected to the Internet.Wearable tech? Like cell phones, wearables make tracking and targeting possible while one is away from a traditional computer or not actively using the Web. These devices can also collect information that cell phones can’t – our heart rate or body temperature, or the number of hours one slept last week.For marketers, the Internet of Things is especially exciting because it raises the possibility of being able to track and target consumers anywhere in their homes, even while they are away from their desktop computers or mobile devices.Imagine your “smart” refrigerator not only determining when you’re low on milk, but offering a 15 percent discount if you were to buy today a quart of milk at your local market. Or your Internet-connected washing machine recommending a new laundry detergent based on its monitoring of your laundry loads.Another hot technology trend – commercial drones – is relevant here. Although unmanned aerial vehicles (UAVs) have generated attention for their ability to <a href="http://www.amazon.com/b?node=8037720011" target="_blank" rel="noopener">facilitate package delivery</a> and <a href="http://www.independent.co.uk/news/world/americas/widening-the-net-facebook-drones-to-cover-world-in-wifi-9222334.html" target="_blank" rel="noopener">accommodate WiFi access</a>, they can be used to <a href="http://venturebeat.com/2015/02/23/drones-over-head-in-las-valley-are-tracking-mobile-devices-locations/" target="_blank" rel="noopener">collect data on consumers</a> when <a href="http://www.pcworld.com/article/2904692/epic-appeals-to-court-for-faa-drone-privacy-rules.html" target="_blank" rel="noopener">they’re outdoors or near a window</a>, even when they are without cell phones, wearables or other devices used to track their movement and activities.Ingestibles—“smart” pills containing sensors that are swallowed, <a href="http://blogs.gartner.com/michael-shanler/wearable-devices-ha-whats-your-appetite-for-ingestibles/" target="_blank" rel="noopener">allowing the collection of data within one’s body</a>—are a nascent technology that, as they become more widely used, may ultimately fit into this theory.Storage of DataWith social media platforms, mobile, wearable and IoT devices and UAVs collecting information on an unprecedented scale, that data needs to be stored somewhere. Enter the cloud. All of these new technologies depend heavily on the massive storage capacity made possible by cloud systems; it wouldn’t be cost effective otherwise. (Case in point: A 2013 study revealed that<a href="http://www.sciencedaily.com/releases/2013/05/130522085217.htm" target="_blank" rel="noopener"> 90% of all the data in the world had been collected over the prior two years</a>.)Exploitation of DataOnce all this data has been collected and stored in the cloud, what then?That’s where big data enters the picture. Big data is providing companies with the analytic tools for sifting through these inconceivably large databases in order to exploit the bits therein.For example, that photo you uploaded to Instagram can now be analyzed for marketing opportunities. Perhaps you were holding a bag of potato chips; using big data analytics, the chip maker could target you in its next online ad campaign. Or maybe a competing snack company wants to entice you to switch brands. Why stop there? What about the shirt that you were wearing? And that pair of jeans? (I’ve written on the application of big data analytics to the billions of photos hosted on social media sites <a href="https://www.sociallyawareblog.com/2014/08/05/picture-this-online-photos-and-big-data/" target="_blank" rel="noopener">here</a>.)Similarly, information collected from wearables, when processed by big data tools, opens up new opportunities for marketers. Your pulse rate may be of interest to the health care industry. Your jogging workouts may attract attention from retailers of athletic shoes and clothing.But the mother lode just might be all of the marketing insights to be generated by big data analytics stemming from multiple IoT devices in one’s home—the thermostat, stove, refrigerator, coffee machine, toaster, washer/dryer, humidifier, alarm clock and so on: for the first time ever, marketers will have access to real-time information regarding once-private quotidian activities.Legal ConsiderationsSo that’s my theory: The adoption of today’s hottest IT technologies is being driven in large part by the insatiable desire of businesses to collect and store ever-larger amounts of consumer data, and to then use that data to more successfully market to consumers. When these technologies are viewed in light of this theory, some key legal observations emerge.First, because these technologies all involve the collection, storage and exploitation of consumer data, privacy and data security are necessarily raised and indeed are the most important legal considerations. That’s not meant to minimize intellectual property, product liability and other legal concerns associated with these technologies; privacy and data security laws, however, are the ones specifically designed to regulate the collection, use and exploitation of consumer data.Second, these technologies are being developed and implemented far faster than the ability of legislators, regulators and courts to develop rules to govern them. It will be essential for companies embracing these technologies to self-regulate—failure to do so will result in an inevitable backlash, leading to burdensome regulations that will undermine innovation.Third, these technologies will present real challenges to the majority of companies that want to “do the right thing” by their customers. For example, consumers ideally should be provided with notice and an opportunity to consent prior to the collection, storage and exploitation of their personal information, but how can this be done through, say, a smart electric toothbrush? These issues need to be addressed early in the development cycle for next-generation products—it can’t be an afterthought. Moreover, are customers receiving real, tangible value in connection with the data being collected from them?Fourth, as our social-media pages, devices and appliances become more closely tied together, and linked to massive troves of data about us in the cloud, businesses need to be aware that it takes only one weak link to put the entire ecosystem at risk. Hackers will no longer need to bypass your computer or phone’s security to capture personal data; they may be able to access your records through, say, an Internet-enabled toaster that lacks adequate security controls.Finally, companies need to pay attention to whether they need to collect all the data that can be collected through these technologies. Ideally, they should seek to minimize the amounts of personally identifiable information they hold, in order to reduce privacy- and security-related legal risks, and liability.No doubt this last recommendation may be hard for many marketers to embrace; after all, data-gathering is in their DNA. And that same hard-wiring is in all of our DNA—the original source code for data collection, storage and exploitation. We wouldn’t be human without it.(This is an expanded, “director’s cut” version of an op-ed piece that <a href="http://www.marketwatch.com/story/heree-my-grand-unifying-theory-of-todays-tech-trends-2015-05-12?page=2" target="_blank" rel="noopener">originally appeared</a> in <a href="http://www.marketwatch.com/">MarketWatch</a>.)

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Toward a Grand Unifying Theory of Today’s Tech Trends

Toward a Grand Unifying Theory of Today’s Tech Trends