Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

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

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

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

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“Yellow journalism” websites are <a href="https://www.washingtonpost.com/national/for-the-new-yellow-journalists-opportunity-comes-in-clicks-and-bucks/2016/11/20/d58d036c-adbf-11e6-8b45-f8e493f06fcd_story.html" target="_blank" rel="noopener">using social media to capitalize on popular ideology</a>. And they’re making a bundle.New York City recently passed <a href="http://gothamist.com/2016/10/27/freelance_protection_nyc.php" target="_blank" rel="noopener">the country’s first law protecting the wages of “gig economy” workers</a>. The Wall Street Journal published an illuminating <a href="http://www.wsj.com/articles/whos-working-in-the-gig-economy-1479920400" target="_blank" rel="noopener">infographic</a> illustrating who’s making a living that way.Twitter <a href="http://www.usatoday.com/story/tech/news/2016/11/15/twitter-suspends-alt-right-accounts/93943194/" target="_blank" rel="noopener">suspended high-profile accounts</a> associated with the “alt-right” movement.<a href="http://www.nbcnewyork.com/news/local/Uber-Ban-on-Upstate-NY-rides-causes-holiday-frustration-403441216.html?_osource=SocialFlowFB_NYBrand" target="_blank" rel="noopener">A state law</a> kept 43,000 wannabe Uber users in upstate New York from ordering a car from the ride-hailing service on Thanksgiving eve.PayPal reported <a href="http://venturebeat.com/2016/11/27/paypal-nearly-13-of-thanksgiving-and-black-friday-shopping-was-done-on-mobile/" target="_blank" rel="noopener">some surprising statistics</a> about this year’s online shopping over Thanksgiving weekend. Check out our own <a href="https://www.sociallyawareblog.com/2015/11/25/cyber-monday-social-commerce-and-the-end-of-an-era/" target="_blank" rel="noopener">blog post</a> from last year on how social commerce is killing off both Black Friday and Cyber Monday.Two new ethics opinions from the D.C. Bar provide <a href="http://www.abajournal.com/news/article/beware_of_imported_contacts_social_media_statements_on_legal_issues_ethics_/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email" target="_blank" rel="noopener">an excellent overview of potential ethical issues raised by social media use by attorneys</a>; among other things, the opinions highlight the need for lawyers to exercise caution when tweeting or posting positions on legal issues (which could potentially create an inadvertent conflict with a client’s interest), and in allowing social media platforms to access their email contacts (which could potentially identify clients or divulge information for which there is an ethical obligation to protect from disclosure). Apparently <a href="http://www.theverge.com/2016/11/29/13776894/pewdiepie-quit-casey-neistat-vlog-youtube-vloggers" target="_blank" rel="noopener">vlogging can be a grind</a> even for the most financially successful social media stars.This New York Times <a href="http://www.nytimes.com/2016/11/30/technology/while-we-werent-looking-snapchat-revolutionized-social-networks.html?smid=fb-share" target="_blank" rel="noopener">piece exploring how Snapchat revolutionized social media</a> discusses some of the unique platform and business model features that <a href="https://www.sociallyawareblog.com/2015/11/10/building-a-successful-social-media-app-four-lessons-learned-from-snapchat/" target="_blank" rel="noopener">we cited last year as responsible for Snapchat’s success</a>.<a href="http://www.nytimes.com/2016/11/28/technology/cnn-brings-in-the-social-app-beme-to-cultivate-a-millennial-audience.html?em_pos=small&emc=edit_tu_20161128&nl=bits&nl_art=2&nlid=69264395&ref=headline&te=1&_r=0" target="_blank" rel="noopener">CNN bought a social media company</a> founded by a YouTube star with a millennial following.Speaking of CNN, that company and other prominent news publishers are <a href="http://digiday.com/publishers/conservative-trolls-attacking-publishers-app-store-ratings/" target="_blank" rel="noopener">getting low app store ratings</a> from people claiming that such publishers have a liberal bias.Google Maps just made it easier to snag a table at usually-crowded restaurants and watering holes.Think twice before <a href="http://www.nytimes.com/2016/11/13/business/cellphone-number-social-security-number-10-digit-key-code-to-private-life.html?smid=fb-nytimes&smtyp=cur&_r=0" target="_blank" rel="noopener">giving out your cellphone number</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: Yellow journalism rakes in cash; NYC law protects gig economy pay; Twitter suspends “alt-right” accounts

“Yellow journalism” websites are using social media to capitalize on popular ideology. And they’re making a bundle. New York City recently passed the country’s 

Social Links: Yellow journalism rakes in cash; NYC law protects gig economy pay; Twitter suspends “alt-right” accounts

2016 has been a <a href="http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm" target="_blank" rel="noopener">challenging</a> year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liability stemming from user-generated content. An unusually large number of cases this year have resulted in decisions holding that the defendant website operators were not entitled to immunity under Section 230. For example, as we’ve discussed <a href="http://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">recently</a>, in Hassel v. Bird, the California Court of Appeal held that Section 230 did not prevent the court from ordering Yelp to remove from its website allegedly defamatory reviews posted by users, even though Yelp was not a party in the underlying defamation suit.We are working on an article surveying some of the recent cases holding that Section 230 did not apply. But in the meantime, it is important to remember that Section 230 remains a powerful shield against liability and that defendants continue to wield it successfully in many cases. The Ninth Circuit’s recent decision in Kimzey v. Yelp is one such case.Kimzey arose from two negative Yelp reviews that user “Sarah K” posted in September 2011 about Douglas Kimzey’s locksmith business in the Seattle area. Sarah K’s reviews were extremely negative and rated Kimzey one out of five stars in Yelp’s multiple-choice star rating system. In all caps, she warned Yelpers that “THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY . . . CALL THIS BUSINESS AT YOUR OWN RISK.”In response, Kimzey filed a pro se complaint in the U.S. District Court for the Western District of Washington alleging that Yelp should be held liable for publishing such “Libelous Per Se statement[s]” on its website. In an apparent attempt to plead around Section 230 and the immunity afforded to website operators for liability arising from user-generated content, Kimzey asserted two arguments.Kimzey’s first argument was that Yelp created the reviews itself, by copying them from another website and reposting them on Yelp’s website. The court made quick work of this theory, noting that “threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA.” The court went on to observe that, “[w]ere it otherwise, CDA immunity could be avoided simply by reciting a common line that user-generated statements are not what they say they are” and that “it cannot be the case that the CDA and its purpose of promoting the free exchange of information and ideas over the Internet could be so casually eviscerated.”Kimzey’s second theory was that Yelp was responsible for Sarah K’s reviews because it “transformed” the reviews into its own advertisements or promotions and because Yelp served as an “author” of the one-star rating by “designing the star image and creating the color” of its star rating system. While it is well established that a website operator may lose Section 230 immunity if it makes a material contribution to the creation or development of the content at issue, here the court held that “neither of the allegedly creative actions taken by Yelp falls within [the court’s] interpretation of the terms ‘creation’ or ‘development’ of information.”Specifically, the court held that, because Yelp’s star rating system is based entirely on user input and merely “reduces this information into a single, aggregate metric,” the star ratings cannot be “anything other than user-generated data” within the scope of the Section 230 immunity. The court went on to characterize Yelp’s star rating system “as the kind of ‘neutral tool’ operating on ‘voluntary inputs’ that [the Ninth Circuit] determined did not amount to content development or creation” in the Roommates.com case. The court also cited <a href="https://en.wikipedia.org/wiki/Carafano_v._Metrosplash.com,_Inc." target="_blank" rel="noopener">Carafano v. Metrosplash</a> for the proposition that “the mere fact that an interactive computer service classifies user characteristics and collects responses to questions does not transform it into a developer of the underlying misinformation.” Given this analysis, the Ninth Circuit upheld the district court’s dismissal of Kimzey’s complaint based on Yelp’s immunity under Section 230.Kimzey represents a clean Section 230 victory for Yelp, of the kind that we took for granted before the spate of Section 230 wins for plaintiffs that we have seen this year. We will be watching closely to see how the Section 230 winds blow as we move into 2017.

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Yelp Case Shows CDA §230 Still Has Teeth

Yelp Case Shows CDA §230 Still Has Teeth

2016 has been a challenging year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liabi

The California Supreme Court <a href="http://www.latimes.com/business/technology/la-fi-tn-yelp-ava-bird-20160921-snap-story.html" target="_blank" rel="noopener">agreed to hear Yelp’s case</a> arguing that requiring the company to remove a one-star review of a law firm “creates a gaping hole” in the immunity that shields internet service providers from suits related to user-generated content.Images, videos and quoted tweets no longer count toward Twitter’s 140-charter limit.Google is undertaking <a href="https://www.wired.com/2016/09/inside-googles-internet-justice-league-ai-powered-war-trolls/" target="_blank" rel="noopener">cutting-edge efforts to battle online trolls</a>.Only <a href="http://www.wired.co.uk/article/north-korea-28-websites-domain" target="_blank" rel="noopener">28 websites are registered</a> under North Korea’s top level .kp domain.Chinese law enforcement agencies investigating criminal cases can now secretly <a href="http://www.bloomberg.com/news/articles/2016-09-22/tencent-s-wechat-social-media-posts-count-as-criminal-evidence" target="_blank" rel="noopener">request access to personal information</a> posted on social media services.Back here in the United States, Twitter’s bi-annual transparency report shows that between January and June the platform received 2,520 information requests from U.S. law enforcement agencies.The Department of Transportation issued <a href="http://www.nytimes.com/2016/09/21/technology/the-15-point-federal-checklist-for-self-driving-cars.html" target="_blank" rel="noopener">a 15-point list of safety expectations</a> for driverless cars.<a href="http://www.relationshipscience.com/" target="_blank" rel="noopener">Relationship Science</a>, a repository of information about influential people and their connections, is <a href="http://venturebeat.com/2016/09/20/relationship-science-takes-a-shot-at-linkedin-opens-its-database-to-everyone/" target="_blank" rel="noopener">opening its database to everyone</a>, a change that could put the company in competition with LinkedIn.Content marketers need to <a href="https://www.entrepreneur.com/article/280975?utm_content=buffer9c5cf&utm_medium=social&utm_source=twitter.com&utm_campaign=bufferrr" target="_blank" rel="noopener">publish how many articles a week</a> to make a difference?! Sigh.<a href="http://www.socialmediatoday.com/social-networks/ultimate-guide-building-your-audience-snapchat" target="_blank" rel="noopener">Building an audience on Snapchat</a> seems pretty arduous, too.Concerned that your identity may have been stolen in some of the major hacking attacks in the last three years? Take <a href="http://www.nytimes.com/interactive/2015/07/29/technology/personaltech/what-parts-of-your-information-have-been-exposed-to-hackers-quiz.html?smid=fb-nytimes&smtyp=cur&_r=0" target="_blank" rel="noopener">this quiz</a> to learn your minimum level of exposure and what you can do about it.The <a href="http://venturebeat.com/2016/09/20/5-bots-to-try-this-week-evabot-fashion-brobot-event-io-breakingsports-and-american-express/" target="_blank" rel="noopener">five most popular bots</a> on <a href="https://botlist.co/" target="_blank" rel="noopener">Botlist</a> last week.

Social Links: Yelp’s Communications Decency Act claim; Twitter loosens its character limit; building a Snapchat audience

The California Supreme Court agreed to hear Yelp’s case arguing that requiring the company to remove a one-star review of a law firm “creates a gaping hole” in 

Social Links: Yelp’s Communications Decency Act claim; Twitter loosens its character limit; building a Snapchat audience

A recent California court decision involving Section 230 of the Communications Decency Act (CDA) is creating considerable concern among social media companies and other website operators.As we’ve discussed in past blog posts, CDA <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230</a> has played an essential role in the growth of the Internet by shielding website operators from defamation and other claims arising from content posted to their websites by others.Under Section 230, a website operator is not “treated as the publisher or speaker of any information provided” by a user of that website; as a result, online businesses such as Facebook, Twitter and YouTube have been able to thrive despite hosting user-generated content on their platforms that may be false, deceptive or malicious and that, absent Section 230, might subject these and other Internet companies to crippling lawsuits.Recently, however, the California Court of Appeal affirmed a lower court opinion that could significantly narrow the contours of Section 230 protection. After a law firm sued a former client for posting defamatory reviews on Yelp.com, the court not only ordered the former client to remove the reviews, but demanded that Yelp (which was not party to the dispute) remove these reviews.The case, Hassell v. Bird, began in 2013 when attorney Dawn Hassell sued former client Ava Bird regarding three negative reviews that Hassell claimed Bird had published on Yelp.com under different usernames. Hassell alleged that Bird had defamed her, and, after Bird failed to appear, the California trial court issued an order granting Hassell’s requested damages and injunctive relief.In particular, the court ordered Bird to remove the offending posts, but Hassell further requested that the court require Yelp to remove the posts because Bird had not appeared in the case herself. The court agreed, entering a default judgment and ordering Yelp to remove the offending posts. (The trial court also ordered that any subsequent comments associated with Bird’s alleged usernames be removed, which the Court of Appeal struck down as an impermissible prior restraint.) Yelp challenged the order on a variety of grounds, including under Section 230.The Court of Appeal held that the Section 230 safe harbor did not apply, and that Yelp could be forced to comply with the order. The court reasoned that the order requiring Yelp to remove the reviews did not impose any liability on Yelp; Yelp was not itself sued for defamation and had no damages exposure, so Yelp did not face liability as a speaker or publisher of third-party speech. Rather, citing California law that authorized a court to prevent the repetition of “statements that have been adjudged to be defamatory,” the court characterized the injunction as “simply” controlling “the perpetuation of judicially declared defamatory statements.” The court acknowledged that Yelp could face liability for failing to comply with the injunction, but that would be liability under the court’s contempt power, not liability as a speaker or publisher.The Hassell case represents a significant setback for social media companies, bloggers and other website operators who rely on the Section 230 safe harbor to shield themselves from the misconduct of their users. While courts have previously held that a website operator may be liable for “contribut[ing] materially to the alleged illegality of the conduct”—such as StubHub.com allegedly suggesting and encouraging illegally high ticket resale prices—here, in contrast, there is no claim that Yelp contributed to or aided in the creation or publication of the defamatory reviews, besides merely providing the platform on which such reviews were hosted.Of particular concern for online businesses is that Hassell appears to create an end-run around Section 230 for plaintiffs who seek to have allegedly defamatory or false user-generated content removed from a website—sue the suspected posting party and, if that party fails to appear, obtain a default judgment; with a default judgment in hand, seek a court order requiring the hosting website to remove the objectionable post, as the plaintiff was able to do in the Hassell case.Commentators have <a href="http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm" target="_blank" rel="noopener">observed</a> that Hassell is one of a growing number of recent decisions seeking to curtail the scope of Section 230. After two decades of expansive applications of Section 230, are we now on the verge of a judicial backlash against the law that has helped to fuel the remarkable success of the U.S. Internet industry? *          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">How to Protect Your Company’s Social Media Currency</a>; <a href="https://www.sociallyawareblog.com/2012/12/17/google-adwords-decision-highlights-contours-of-the-cda-section-230-safe-harbor/" target="_blank" rel="noopener">Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor</a>; and <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">A Dirty Job: TheDirty.com Cases Show the Limits of CDA Section 230</a>.

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Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators

Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators

A recent California court decision involving Section 230 of the Communications Decency Act (CDA) is creating considerable concern among social media companies a

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

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

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

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

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

In December 2014, we noted that the Federal Trade Commission’s (FTC) settlement with advertising firm Deutsch LA, Inc. was a clear signal to companies that advertise through social media that they need to comply with the disclosure requirements of Section 5 of the FTC Act. On September 2, 2015, the FTC announced <a href="https://www.ftc.gov/news-events/press-releases/2015/09/xbox-one-promoter-settles-ftc-charges-it-deceived-consumers" target="_blank" rel="noopener">a settlement</a> along the same lines with Machinima, Inc., a company promoting the Xbox One system. This new action indicates that the FTC is serious about enforcing compliance in this space, so companies need to make sure that their advertising and marketing partners understand their obligations under Section 5.A Quick Refresher on Online Advertising Disclosure RequirementsAs we explained in our previous alert, the FTC’s <a href="https://www.ftc.gov/sites/default/files/documents/federal_register_notices/guides-concerning-use-endorsements-and-testimonials-advertising-16-cfr-part-255/091015guidesconcerningtestimonials.pdf" target="_blank" rel="noopener">Endorsement Guides</a> describe how advertisers using endorsements can avoid liability under Section 5 for unfair or deceptive acts or practices. Simply put, a customer endorsement must be from an actual, bona fide user of the product or service and, if there is any material connection between the endorser and the advertiser that consumers would not reasonably expect but that would affect the weight given to the endorsement—such as payment or an employment relationship—then that connection must be clearly and conspicuously disclosed.According to the <a href="https://www.ftc.gov/system/files/documents/cases/150902machinima-cmpt.pdf" target="_blank" rel="noopener">complaint</a> in In re Machinima, Machinima paid video bloggers (“influencers”) to promote Microsoft’s Xbox One system by producing and uploading to YouTube videos of themselves playing Xbox One games. Machinima did not require any disclosure of the compensation the influencers received, and many videos lacked any such disclosure. The FTC alleged that the payments would not be reasonably expected by YouTube viewers, such that the failure to disclose them was deceptive in violation of Section 5. In light of the Deutsch LA case, which dealt with endorsements on Twitter that did not include proper disclosures, In re Machinima seems uncontroversial. But what makes the case interesting is how close Microsoft came to being swept up in it.Microsoft Escapes Liability, NarrowlyThe FTC also issued a <a href="https://www.ftc.gov/system/files/documents/closing_letters/nid/150902machinima_letter.pdf" target="_blank" rel="noopener">closing letter</a> reflecting that it had investigated Microsoft, and Microsoft’s advertising agency Starcom, in relation to influencers’ videos. (Starcom managed the relationship with Machinima.) Even though the FTC did not ultimately take action against Microsoft (or Starcom), the closing letter is significant because it makes clear the FTC’s position that a company whose products are promoted bears responsibility for the actions of its ad agencies—as well as the actions of those engaged by its ad agencies.According to the closing letter, Microsoft avoided an enforcement action because it had a “robust” compliance program in place that included specific guidance relating to the FTC’s Endorsement Guides and because Microsoft made training relating to the Endorsement Guides available to employees, vendors and personnel at Starcom. Furthermore, Microsoft and Starcom adopted additional safeguards regarding sponsored endorsements and took swift action to require Machinima to insert disclosures into the offending videos.Given the increased reliance of advertisers on social media campaigns, the Machinima case provides both a clear warning and clear guidance to companies on how to minimize the risk of a Section 5 enforcement action. Not only must notice be provided of any paid endorsements, regardless of the medium in which they appear, but advertisers should also seriously consider having in place specific policies and procedures to address the FTC’s Endorsement Guides—as well as to ensure that their ad agencies and other involved parties comply with them.

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Julie O'Neill

FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers