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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2024 Recap: Ten Lords A-Leaping!

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We have become inured to the sight of people staring at their phones rather than engaging with one another or enjoying their real-life surroundings. But, over the past two weeks, enslavement to mobile devices rose to new levels, with smartphones and tablets actually propelling users’ movements in the real world as opposed to merely distracting them from it.Unless you’ve been off the grid this month, you know that the force mobilizing these seemingly possessed pedestrians (and drivers!) has been Pokémon Go, an app that has been downloaded more than 15 million times. Pokémon Go is currently boasting more daily users than Twitter despite having been launched on July 6, 2016, making it the most popular mobile game of all time.Despite all this, if you happen to be, umm, over a certain age (i.e., you’re not a Millennial or younger), you may be a bit mystified as to what this Pokémon Go thing is all about. Accordingly, we put together this primer on Pokémon Go, including some observations regarding potential legal issues raised by the app.How the Game WorksPokémon Go is an augmented reality game that uses the device’s ability to track time and location and shows the user a map of his or her real-life surroundings. As the player moves around, the game superimposes animated Pokémon characters onto the screen over a view of the player’s real-life surroundings as seen through his or her mobile device’s camera. The more characters the player catches, the higher his or her ranking rises.The game is free to download from online app stores, but, as players progress, they need Pokémon coins to enable certain functions. While the game allows players to earn coins over time, the fastest way to acquire them is by purchasing them. Such in-app purchases are real money makers, expected to account for more than $50 billion in industry-wide revenue this year.Who’s Behind ItThe funds that players are plunking into Pokémon Go are likely to add up to real money for the companies behind the app, a <a href="http://www.marketwatch.com/story/pokemon-chasing-investors-send-nintendo-shares-soaring-2016-07-11-61034340" target="_blank" rel="noopener">joint project</a> of The Pokémon Company, which is 32%-owned by Nintendo, and Niantic Inc., a spinout from Alphabet Inc.Since the app’s recent release, shares in Nintendo—a company that has <a href="http://fraghero.com/nintendo-still-refusing-release-games-mobile-market/" target="_blank" rel="noopener">struggled in recent years as a result of its reluctance to embrace mobile games</a>—have <a href="http://news.sky.com/story/nintendo-shares-up-56-amid-pokemon-go-craze-10501554" target="_blank" rel="noopener">risen 56%</a>. The game has also significantly strengthened the financial position of Unity Technologies, the company that owns the game engine software that provides basic functionality for Pokémon Go (and for approximately 31% of the 1,000 top-grossing mobile games).Perks and Pitfalls (some, unfortunately, literal)Pokémon Go is being hailed as boon for small businesses; to drive foot traffic, merchants are paying the app a $10 daily fee for items called lures, which attract users. It’s also being lauded for incentivizing some players to exercise and for relieving users’ depression and social anxiety. Of course, the app is also creating problems and drawing its share of controversy.Safety concerns have arisen as players who won’t look away from their mobile devices have run-ins with their real-life physical surroundings, cutting and bruising themselves, getting into driving accidents, and even falling off cliffs. These incidents have prompted a police department in Texas to post to social media a list of safety reminders for Pokémon Go users.The list advises players to “tell people where you’re going if it is somewhere you’ve never been”—wise advice in light of police reports describing Missouri armed robbers’ use of the game’s geolocation feature “to anticipate the location and level of seclusion of unwitting victims.”And, while some columnists have deemed the game educational because many of its so-called PokéStops (places where players can get free in-game items) are famous landmarks and historical markers that allow “players to learn about their community and its history,” some of those PokéStops, such as the Holocaust Museum, have objected, maintaining that playing the game on their property is inappropriate. They are frustrated by the fact that they have no control over their PokéStop designation.Legal IssuesDespite the app being so new, it is already raising legal concerns. Some of the key concerns include the following:PrivacyThe Pokémon Go app has been dogged by privacy concerns. When it was first launched, the Pokémon Go app requested permission to access all of the data associated with the player’s Google accounts (including emails, calendar entries, photos and stored documents). The app’s first update, available since at least July 12, 2016, remedied that problem and now asks people downloading it for permission to access only their Google IDs and email addresses.The more limited-information-access permission terms—which downloaders of the original version of Pokémon Go can only adopt by downloading the update, signing out and signing back in—haven’t stopped U.S. Senator Al Franken from penning a letter to Niantic’s CEO John Hanke requesting Niantic to answer a series of questions to “ensure that Americans’—especially children’s—very sensitive information is protected.”Product LiabilityAnd what about the aforementioned injuries that people have sustained while playing Pokémon Go? Can Pokémon Go’s developers be held liable for such injuries? At least one car accident victim is suing another popular social media app, Snapchat, for the traumatic brain injuries he suffered when he was struck by a car driven by a Georgia woman allegedly trying to use the Snapchat speed filter—a feature that tracks how fast the app’s user is moving and rewards points to users who submit photos of their speed.TrespassThere’s also the question of property rights. In some cases, owners of the physical real estate sites that have been designated as PokéStops have complained about the traffic and other nuisances caused by the players. As a result, Niantic is accepting requests for removal of PokéStops from property owners, but removal isn’t guaranteed.Of course, app users who enter upon another’s land without permission may be subject to trespassing claims. But could the companies behind the game also be liable for trespass? As The Guardian points out, “A Pokéstop cannot be ‘on private property.’ A PokéStop does not exist: it is a latitude and longitude stored on Niantic’s servers, interpreted by the Pokémon Go client which then represents it as a circle hovering over a stylized Google Map of the area surrounding the player.”It is possible to recover in trespass for an intangible invasion of property, but whether a real estate owner’s exclusive rights to his or her property extends to cyberspace remains to be seen.Steps Taken to Mitigate Legal RisksPokémon Go’s owners have taken steps to limit their potential legal liability. For example, a warning screen on the app advises users to pay attention to their real-world surroundings. And Pokémon Go’s detailed, robust Terms of Service attempt to limit the potential liability of the companies behind the app. In addition to a $1,000 liability cap and a mandatory arbitration provision, the Terms of Service contain an entire “Safe Play” section, which states in part that, as a player, you “agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services. You also agree not to use the App to violate any applicable law, rule, or regulation (including but not limited to the laws of trespass).”Pokémon Go’s Terms of Service, however, don’t do anything to limit the liability of the game’s players. As noted above, users could be liable for trespass and for any harm that others suffer as a result of players’ use of the app (especially careless use, such as playing while behind the wheel of a car).The UpshotAny innovative technology that becomes a worldwide phenomenon overnight is bound to raise legal concerns. But, as we’ve noted here at Socially Aware, such concerns often turn out to be overblown. The real significance of Pokémon Go is ultimately a business, rather than a legal, story: thanks to the app, millions of consumers around the world have now embraced augmented reality technology. Lawsuits will inevitably follow in the wake of Pokémon Go’s success but, more importantly, so will millions of dollars of investment in new augmented reality applications. As a result, in what could be a very short amount of time, the integration of augmented reality into nearly every facet of our everyday life will become, well, a reality.[Authors’ Note: We would like to thank Luke D. (age 13), Ben R. (age 12), Alfredo M. (age 10) and Dylan J. (age 9) for the invaluable research that they contributed to this blog post.]*          *        *For more of the Socially Aware editors’ observations on tech innovations, please see the following: Will Ad Blockers Kill Online Publishing?; Building a Successful Social Media App: Four Lessons Learned From Snapchat; and Narrow Vision: Did Anti-Glass Hysteria Contribute to the Demise of Google Glass?

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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Augmenting Reality: A Pokémon Go Business and Legal Primer

Augmenting Reality: A Pokémon Go Business and Legal Primer

We have become inured to the sight of people staring at their phones rather than engaging with one another or enjoying their real-life surroundings. But, over t

The UK wants to use the blockchain to track the spending of welfare recipients.Some believe that a recent <a href="http://fortune.com/2016/07/10/sharing-netflix-password-crime/" target="_blank" rel="noopener">Ninth Circuit holding</a> could turn sharing passwords into a federal crime under the Computer Fraud and Abuse Act.And another Ninth Circuit <a href="http://fortune.com/2016/07/12/facebook-cfaa/" target="_blank" rel="noopener">opinion sided with Facebook</a> in a closely-watched case interpreting the same federal law, this time involving unauthorized access to Facebook’s website.The fashion world is embroiled in a rocky romance with social media.Snapchat filed a <a href="http://tech.co/snapchat-explores-image-recognition-tech-ads-2016-07" target="_blank" rel="noopener">patent application for image-recognition technology</a> that may help the platform’s ad sales.Scientists think they’ve found a way to <a href="http://www.popsci.com/scientists-think-theyve-found-way-to-eliminate-virtual-reality-sickness" target="_blank" rel="noopener">tackle virtual reality sickness</a>.What’s going on at Vine? First a bunch of <a href="http://digiday.com/platforms/swinging-vine-half-top-influencers-left-platform/" target="_blank" rel="noopener">influencers cut ties</a> with the platform. Now a group of its top executives have jumped ship.<a href="http://www.nytimes.com/2016/07/14/technology/live-streaming-breaks-through-and-cable-news-has-much-to-fear.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=0" target="_blank" rel="noopener">Livestreaming services</a> are giving cable TV networks a run for their money.You didn’t think we’d ignore the Pokémon Go craze, did you? Here’s advice on how to <a href="http://www.nytimes.com/2016/07/14/technology/personaltech/how-to-protect-privacy-while-using-pokemon-go-and-other-apps.html" target="_blank" rel="noopener">protect your privacy</a> when you’re using the app. We’re also preparing an article describing the game and the business and legal issues that are arising from it. Stay tuned.

Social Links: Appeals court opinions show reach of anti-hacking law; a virtual reality sickness cure; intrigue at Vine

The UK wants to use the blockchain to track the spending of welfare recipients. Some believe that a recent Ninth Circuit holding could turn sharing passwords in

Social Links: Appeals court opinions show reach of anti-hacking law; a virtual reality sickness cure; intrigue at Vine

Snapchat has <a href="http://www.wsj.com/articles/snapchats-teen-fans-grumble-as-app-catches-on-with-their-folks-1467661872">caught on with “oldies”</a> (that’s people 35 and older, FYI).Facebook Messenger is testing “Secret” mode, a feature that allows some messages to be read only by the recipient.A <a href="http://www.nytimes.com/2016/07/06/technology/snapchat-snow-korea.html?_r=0" target="_blank" rel="noopener">South Korean copy of Snapchat</a> has taken off in Asia.Using social media to help promote your brand? Here’s a list of top <a href="http://www.huffingtonpost.com/richard-lorenzen/top-6-facebook-marketers-_b_10661018.html" target="_blank" rel="noopener">Facebook marketers</a> and some advice on how to get your customers to <a href="http://www.adweek.com/socialtimes/getting-customers-to-buy-using-social/641809" target="_blank" rel="noopener">make social platforms their point of purchase</a>.<a href="http://www.wsj.com/articles/meet-mikmak-the-mobile-shopping-network-that-sells-via-video-1467832496" target="_blank" rel="noopener">Meet MikMak</a>, the mobile shopping network that sells via video.A 14-year-old <a href="http://nypost.com/2016/07/08/snapchat-let-my-14-year-old-read-sex-stories-suit/" target="_blank" rel="noopener">and</a> his mother are <a href="http://nypost.com/2016/07/08/snapchat-let-my-14-year-old-read-sex-stories-suit/" target="_blank" rel="noopener">suing Snapchat</a>, claiming the app regularly exposes him to sexually explicit content.Dieters are <a href="http://www.nytimes.com/2016/07/08/health/instagram-diets.html?smprod=nytcore-iphone&smid=nytcore-iphone-share" target="_blank" rel="noopener">flocking to Instagram</a>.Twitter is looking to ink more NFL-style streaming deals.Young performers are trying to achieve stardom by <a href="http://www.nytimes.com/2016/07/05/business/media/young-performers-look-to-apps-for-stardom.html?&moduleDetail=section-news-0&action=click&contentCollection=Technology&region=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article" target="_blank" rel="noopener">broadcasting on apps</a>, such as YouNow. Perhaps they should go old school, and follow this advice on building the perfect YouTube channel.The Wall Street Journal <a href="http://www.wsj.com/articles/instagrams-kevin-systrom-unfiltered-1467392074" target="_blank" rel="noopener">profiles Instagram’s founder</a>, Kevin Systrom.China is reportedly <a href="http://in.reuters.com/article/china-internet-idINKCN0ZK07V" target="_blank" rel="noopener">launching a crackdown</a> on “fake news” spread on social media sites.<a href="https://www.washingtonpost.com/news/the-switch/wp/2016/07/06/snapchat-memories-is-a-huge-change-for-users/" target="_blank" rel="noopener">Snapchat’s new feature, “Memories,”</a> will allow users to retain some content.

Social Links: Kids roll eyes as parents embrace Snapchat; teen sues Snapchat over sexual content; Snapchat to become less ephemeral with new “Memories” feature (plus some other news not involving Snapchat)

Snapchat has caught on with “oldies” (that’s people 35 and older, FYI). Facebook Messenger is testing “Secret” mode, a feature that allows some messages to be r

Social Links:  Kids roll eyes as parents embrace Snapchat; teen sues Snapchat over sexual content; Snapchat to become less ephemeral with new “Memories” feature (plus some other news not involving Snapchat)

In May 2014, in a decision attracting worldwide attention, the European Court of Justice (ECJ) <a href="http://curia.europa.eu/juris/liste.jsf?num=C-131/12" target="_blank" rel="noopener">held</a> that a European individual’s privacy rights include the “right to be forgotten,” requiring Internet search engine providers to honor an individual’s request to remove certain search results relating to him or her. Specifically, individuals may request deletion of links to information that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”Since the ECJ’s 2014 decision, initiatives to curtail the Internet’s long memory about individuals’ histories have arisen in other continents. In Asia, South Korea has recently embraced a limited form of the right to be forgotten, while a court in China struggled with whether to recognize the right.South Korea’s Guidelines on Requests for Access Restrictions on Internet Self-PostingsAs of June 2016, website operators and Internet search engine providers in South Korea are expected to voluntarily cooperate with guidelines issued by the Korea Communications Commission (KCC) on a form of the right to be forgotten. The KCC released the non-binding “Guidelines on Requests for Access Restrictions on Internet Self-Postings” on April 29, 2016, in response to intense interest in the matter within the country following the ECJ ruling. Operators of websites with user-contributed content and operators of web search engines may receive requests to remove or exclude information relating to individuals.The KCC indicated its intent to strike a balance in the guidelines between protecting an individual’s privacy rights and protecting freedom of expression. The guidelines are meant to address a gap that is not covered by existing remedies (e.g., under copyright law for unlawful reproduction of information, the Press Arbitration Law for erroneous reporting or the Information Network Act for posts infringing a third party’s rights). The specific concern that the guidelines seek to address is the situation where an individual has “lost control” over content that he or she posted to an Internet site (“self-postings”), such as when a user of a service has cancelled his or her membership to the service but the content remains available on the service.Under the guidelines, an individual who would like to remove online self-postings should first attempt to delete the content. If he or she is unable to delete the content, the individual may request that the site administrator restrict access to the materials. The request to remove or exclude content should include the URL of the material to be removed, proof that the requestor posted the content and the reason for removing the content. The site operator may request additional information if the request contains insufficient proof to determine that the requestor posted the content, and the site operator may thereafter deny the request if the additional information provided is still insufficient.Upon removal of the content, the site operator should inform third parties of the removal by publishing a note in place of the removed content that access to the content has been restricted. A third party may appeal the removal of content by providing the website operator with both evidence that he or she authored the content and a reason for reinstating it. Additionally, a requestor who misrepresents another person’s post as his or her own in order to have it removed may be subject to civil and criminal penalties.The individual may also request Internet search engine operators to exclude the content from search results, although it is unclear whether the individual must have originally published the content to be excluded. As a result, the rights afforded to individuals under the KCC guidelines appear to be more limited in scope than the broad rights recognized under the ECJ’s decision.The KCC’s press release and a copy of the guidelines are available (in Korean) can be found <a href="http://www.kcc.go.kr/user.do?boardId=1113&page=A05030000&dc=K00000001&boardSeq=42370&mode=view" target="_blank" rel="noopener">here</a>.China Rejects the Right to Be Forgotten, at Least for Now In contrast to the formal—albeit voluntary—regime that has just taken effect in South Korea, the right to be forgotten does not yet appear to be recognized in China. This is so notwithstanding the recent efforts of a plaintiff seeking to convince a Chinese court to import the right from Europe into China. Indeed, a summary of the case posted by the Haidian District People’s Court in Beijing expressly acknowledges the ECJ’s May 2014 ruling.The case involved a plaintiff seeking to compel a search engine to remove results that related to him. In its ruling, the court concluded the plaintiff had no right to be forgotten. The plaintiff, Ren Jiayu, sued the search engine Baidu after a search on his name pulled—in the “related searches” section on the bottom of the results page—various references to Ren and Taoshi Education Company. Ren was apparently associated with this company in the past, but the company was in ill repute (“many people believed that Taoshi Education was a dishonest company, with some going so far as to claim it was an evil cult,” explained the Beijing court of first instance in its ruling, according to a recent report on these developments). Ren’s employment with Beijing Daoyaxuan Commercial Trading Company Limited was terminated as a result of the association, and he then sued Baidu seeking lost wages and the elimination of a number of keywords from search results for “Ren Jiayu,” including “Taoshi Education Ren Jiayu.”In other words, Ren sought a ruling that a Chinese individual’s privacy rights include a right to be forgotten, similar to that of European individuals, which would require Baidu to honor his request to remove search results information relating to him.Ren argued that the “related searches” terms should be removed in part because he had no prior relationship with the offending company. The court, however, found that he did, and thus concluded that there was no infringement of Ren’s right to his reputation. The court also rejected any claim that Baidu had infringed on Ren’s right to his name. Then, the court turned to whether there could be a new right to be forgotten within the framework of the “general right of personhood” under Chinese law.The court first noted that, even though there was a right to be forgotten in other countries, including countries of the European Union, that jurisprudence would not inform the court’s decision.The court then identified three criteria for the right to be forgotten under Chinese law: the personal interest at issue must (1) encompass a right not already categorized; (2) be legitimate; and (3) require the protection of law.The court acknowledged that Ren had an interest in having the information “forgotten”—it had an adverse impact on his employment prospects—but this interest was not “legitimate and requiring the protection of law.” As the court put it, the search results “relat[e] to very recent events, and [Ren] continues to work in the business administration education profession. This information happens to form a portion of his professional history, and his current individual professional credibility is both of directly relevant and of ongoing concern.”In short, while the Chinese court appears to have concluded that there is no such thing as a right to be forgotten, the case could also be read to suggest that there was no such right based on the facts of this case but that it is plausible that some other individual’s interest in having search results removed could be found to be legitimate and require the protection of the law.An article (in English) describing the case and providing links to the rulings (in Chinese) can be found <a href="http://blog.feichangdao.com/2016/05/an-overview-of-china-first-right-to-be.html" target="_blank" rel="noopener">here</a>.Although the right to be forgotten has not yet taken force in any way in China, the door remains open for further efforts to establish the right. And although the right currently exists only in nonbinding guidance in South Korea, this guidance highlights the growing interest in Asia in what could ultimately become one of Europe’s hottest exports. *          *        *For other Socially Aware blog posts regarding the right to be forgotten, please see the following:<a href="http://www.sociallyawareblog.com/2015/05/28/status-updates-errand-apps-for-everyone-a-right-to-be-forgotten-update-your-entire-google-search-history/" target="_blank" rel="noopener">A Right to Be Forgotten Update</a><a href="http://www.sociallyawareblog.com/2014/05/15/european-court-of-justice-strengthens-right-to-be-forgotten/" target="_blank" rel="noopener">European Court of Justice Strengthens Right to Be Forgotten</a>

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Europe’s Right to Be Forgotten Spreads to Asia

Europe’s Right to Be Forgotten Spreads to Asia

In May 2014, in a decision attracting worldwide attention, the European Court of Justice (ECJ) held that a European individual’s privacy rights include the “rig

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

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Brexit: Data Protection Implications

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

Brexit: Data Protection Implications

In the recently decided <a href="https://caselaw.findlaw.com/ca-court-of-appeal/1736333.html" target="_blank" rel="noopener">People ex rel. Harris v. Delta Air Lines</a>, California’s Court of Appeal unanimously affirmed the dismissal of the State of California’s complaint against Delta Air Lines, Inc., which alleged that the company’s Fly Delta mobile application violated California’s privacy laws. The Court of Appeal held that the lawsuit was expressly preempted by the Airline Deregulation Act of 1978 (ADA). The holding is in line with other cases broadly applying the ADA’s preemption provision and limits the extent to which airlines may be required to comply with state privacy laws.<h5>California’s Lawsuit</h5>The California Attorney General (AG) brought the lawsuit against Delta to enforce California’s Online Privacy Protection Act of 2003 (CalOPPA), In pertinent part, CalOPPA requires an operator of a commercial website or online service to draft and post online a privacy policy informing consumers in California “of the Web site’s or online service’s information practices with regard to the consumers’ personally identifiable information[.]” CalOPPA also places certain other requirements on operators of websites or online services.The AG argued that Delta violated CalOPPA in connection with the Fly Delta mobile app, which can be downloaded from the Internet and used on smart phones and other mobile devices (and therefore arguably makes Delta “an operator of online services” subject to CalOPPA). Users can do a variety of things on the app, including checking in for flights, viewing reservations for air travel, pricing and buying tickets, paying for and tracking checked baggage, and accessing their frequent flyer accounts. The app also purportedly allows users to send and receive information over the Internet, and collects certain personally identifiable information (PII) about individuals residing in California.The AG alleged that Delta did not conspicuously post a privacy policy in connection with the app as required by CalOPPA. According to the complaint, app users allegedly were not informed that their PII was collected, how Delta used such information, or with whom that information was shared, disclosed, or sold. The AG first notified Delta that the app did not comply with CalOPPA in an October 2012 letter. Less than two months later, the AG filed its complaint alleging that the app “does not have a privacy policy conspicuously posted, i.e., reasonably accessible to consumers within the [mobile application.]” The AG’s complaint contained a single cause of action under California’s Business and Professions Code section 17200 (the “unfair competition law” or UCL), claiming that Delta’s CalOPPA violations were “unlawful, unfair, or fraudulent business acts and practices” under the UCL.Delta responded with a demurrer in which it argued that the ADA expressly preempted the AG’s lawsuit. The ADA is a 1978 federal law intended to remove government control over fares, routes, and new carriers entering the market in the commercial aviation field. The ADA contains an <a href="https://www.law.cornell.edu/uscode/text/49/41713" target="_blank" rel="noopener">express preemption provision</a>  that prohibits the states from enacting or enforcing any law, regulation, or provision “related to a price, route, or service of an air carrier . . . ” The trial court agreed with Delta, sustaining the demurrer without leave to amend and dismissing the complaint with prejudice. The AG appealed.<h5>The Court of Appeal’s Opinion</h5>The Court of Appeal affirmed, holding that the ADA preempted California’s UCL claim against Delta. The court began by reiterating the “‘two cornerstones’ of federal preemption analysis”: First, that congressional intent is the focus of the analysis, and second, that there is a presumption against preemption.Supreme Court PrecedentApplying those cornerstone principles here, the court was guided by three cases in which the U.S. Supreme Court addressed the reach of the ADA’s preemption provision: <a href="https://www.law.cornell.edu/supct/html/90-1604.ZS.html" target="_blank" rel="noopener">Morales v. Trans World Airlines, Inc. (1992)</a>, <a href="https://www.law.cornell.edu/supct/html/93-1286.ZO.html" target="_blank" rel="noopener">American Airlines, Inc. v. Wolens (1995)</a>, and <a href="http://www.supremecourt.gov/opinions/13pdf/12-462_p8k0.pdf" target="_blank" rel="noopener">Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014)</a>.In Morales, the Supreme Court held that the ADA preempted Travel Industry Enforcement Guidelines composed by the National Association of Attorneys General (NAAG). The NAAG guidelines purported to govern the content and format of airline fare advertising and were designed to stop allegedly deceptive airline advertisements. The Supreme Court interpreted the “relating to” language in the ADA preemption clause broadly, and held that the ADA preempted the NAAG guidelines because they were “related to” a price, route, or service of an air carrier.The Court similarly found that the ADA preempted the plaintiffs’ claims in Wolens. In Wolens, the plaintiffs alleged American Airlines’ retroactive modification of its frequent flyer program violated Illinois’ Consumer Fraud and Deceptive Business Practices Act. The Supreme Court held that the claims related to American Airlines’ “‘[prices],’ i.e. American’s charges in the form of mileage credits for free tickets and upgrades, and . . . ‘services,’ i.e. access to flights and class‑of-service upgrades unlimited by retrospectively applied capacity controls and blackout dates.” Because they related to prices and services, the claims were preempted by the ADA.In Ginsberg, the Supreme Court reaffirmed its broad interpretation of the ADA’s preemption provision. The Court concluded that the ADA preempted the plaintiffs’ claims for breach of the implied covenant of good faith and fair dealing stemming from allegations that the airline terminated their memberships to its frequent flyer program. The Court found that airline’s frequent flyer program was “related to” the airline’s prices and services, and thus that the claims were preempted by the ADA.ADA Preemption, CalOPPA, and the Fly Delta AppTurning to California’s claim here, the court began by addressing a few issues that had been resolved by Morales and Wolens.First, the court noted that, in assessing whether the ADA preempts the AG’s UCL action, the court would examine the underlying state law predicate—i.e., CalOPPA.Second, the court explained that, in analyzing the preemption issue, it was not required to apply the presumption against preemption because the field governed by the ADA—air transportation—has long been regulated at the federal level.Third, the court rejected the AG’s argument that the complaint did not “relate to” Delta’s service. The app was designed to facilitate access to the airline’s services, and the AG was trying to compel Delta to maintain the app in compliance with CalOPPA. Thus, the lawsuit “related to” Delta’s services. Notably, the court did not decide whether the app itself was a “service” within the meaning of the ADA.The court then concluded that the ADA preempts California’s UCL/CalOPPA claim as applied to Fly Delta. The court explained that CalOPPA is not a mere “disclosure regimen” within which operators of online services may act with broad discretion. Rather, CalOPPA is similar to the consumer protection legislation at issue in Morales and Wolens, and has the potential to intrusively regulate airlines.Moreover, as in Morales, the obligations imposed by CalOPPA would significantly affect the airline’s ability to market its product through the app, and would therefore have a meaningful impact on the fares Delta charges. As the court explained, quoting Morales: “If each AG were to require Delta to comply with its own version of CalOPPA, it would force Delta to design different mobile applications to meet the requirements of each state. And, indeed, enforcement of the CalOPPA’s privacy policy requirements might well make it impossible for an airline to use a mobile application as a marketing mechanism at all.”Finally, the court rejected the AG’s argument that CalOPPA would have only “a peripheral effect on ticket prices, routes, or airline services.” CalOPPA would instead “require Delta to meet state standards regarding privacy policy requirements in place of the market forces currently dictating Delta’s selection and design of” Fly Delta.Because the ADA preempted California’s UCL claim for violation of CalOPPA, the court upheld the dismissal of the complaint. And it did so without leave to amend, finding that there was no reasonable possibility that the AG could amend to avoid ADA preemption.<h5>What This Means</h5>Delta reinforces the broad scope of the ADA’s preemption provision. As the case makes clear, airlines have a strong argument that state laws like CalOPPA, which apply across industries and seem to have only a remote effect on the airline’s prices, routes, or services, simply cannot be applied to them. But this does not mean that the airlines may operate unchecked in areas governed by CalOPPA and other preempted laws. As the Delta court noted, quoting Wolens, Morales, and Ginsberg: “[T]he DOT retains authority to investigate unfair and deceptive practices and unfair methods of competition by airlines, and may order an airline to cease and desist from such practices or methods of competition.” The court further stated that DOT appears to have “taken action” related to the collection of PII by air carriers, and privacy policies for the sharing and storage of that PII. To date, however, the DOT has issued no regulations governing the form and placement of privacy policies related to an airline’s mobile app. And until the DOT does, state privacy laws cannot fill the gap. *      *      *For more information regarding this subject, please see our November 2012 post <a href="https://www.sociallyawareblog.com/2012/11/12/california-a-g-makes-good-on-promise-to-pursue-apps-that-dont-comply-with-the-states-privacy-policy-law/" target="_blank" rel="noopener">California A.G. Makes Good on Promise to Pursue Apps That Don’t Comply With the State’s Privacy Policy Law</a>.

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California Court of Appeal Rules That State Attorney General’s Privacy Suit Over Fly Delta Mobile App Is Preempted

California Court of Appeal Rules That State Attorney General’s Privacy Suit Over Fly Delta Mobile App Is Preempted

In the recently decided People ex rel. Harris v. Delta Air Lines, California’s Court of Appeal unanimously affirmed the dismissal of the State of California’s c

The Internet contains over <a href="http://www.worldwidewebsize.com/" target="_blank" rel="noopener">4.6 billion Web pages</a>, most of which are accessible for free, making content that we used to have to pay for—news, videos, games—available without having to hand over a credit card number.What makes all of this possible is online advertising. As Internet industry commentator Larry Downes has <a href="http://www.dailyherald.com/article/20150926/business/150929295/" target="_blank" rel="noopener">noted</a>, “If no one views ads, after all, advertisers will stop paying for them, and without ads the largely free content of the Internet has no visible means of financial support.”The deal is pretty simple: We put up with the ads and, in return, we get free access to a bottomless pool of content.This system worked well for two decades. And then along came <a href="https://en.wikipedia.org/wiki/Ad_blocking" target="_blank" rel="noopener">ad blockers</a>—software that allows Internet users to avoid online advertisements by targeting the technology used to deliver the ads, the URLs that are the source of the ads, or the mechanisms that enable the ads (even video ads) to be displayed in a certain way.A Growing Threat to Online Publishers and AdvertisersThe use of ad-blocking technologies by consumers grew by 41 percent over the past 12 months; there are now nearly 200 million active users of such technologies worldwide. In the United States, an estimated 45 million Americans are surfing an ad-free version of the Internet.The use of ad blockers cost publishers an estimated $22 billion in 2015. That’s because each Internet user is worth an estimated <a href="http://www.adweek.com/news/technology/how-ad-blocking-could-affect-youtubes-subscription-model-163983" target="_blank" rel="noopener">$215 a year in revenue from online ads</a>, and—as heavy Internet users—people who use ad blockers are likely worth even more.Moreover, the situation is growing worse, as more people embrace ad-blocking technologies; the damage inflicted this year is expected to be over $41 billion.Nor do consumers seem concerned by the threat that ad blockers pose to the Internet ecosystem; according to one survey, a mere <a href="http://www.adweek.com/news/technology/how-ad-blocking-could-affect-youtubes-subscription-model-163983" target="_blank" rel="noopener">two percent</a> of Web surfers expressed a willingness to pay for ad-free access to online content.What’s a Beleaguered Publishing Industry to Do?As more consumers adopt ad blockers, publishers are searching for ways to curtail the harm to their businesses. Unfortunately for publishers, many of the solutions being considered are unlikely to alleviate the problem.Litigation against ad-blocker vendors is one option, but the chance of success may be low. No major lawsuits against ad blockers have been filed in the United States but, in Germany, where at least six publishers have sued Eyeo, the owner of Adblock Plus, the courts have held each time that ad blockers are legal.Some publishers are looking for technological solutions to the problem. The New York Times, for example, is reportedly <a href="https://www.buzzfeed.com/matthewzeitlin/the-new-york-times-wants-to-block-the-blockers?utm_term=.er2jb8Ama" target="_blank" rel="noopener">exploring the use of technical mechanisms to thwart ad-blocking software</a>, but so far there’s been no word on the success of those technical mechanisms. One imagines, however, that any blocker-busting technology adopted by the publishing industry will simply spur the creation of next-generation ad blockers designed to circumvent such technology.“Native advertising” was once viewed as a promising strategy for <a href="http://adage.com/article/media/publishers-weigh-ways-fight-ad-blocking/299116/" target="_blank" rel="noopener">sneaking ads past ad-blocking technology</a>. Characterized as advertising that “follows the natural form and function of the user experience in which it is placed,” native advertising is often called “sponsored content” or an “advertorial.” But ad blockers have become more effective at suppressing native ads, with help from Federal Trade Commission rules that limit online advertising from too closely resembling editorial content.Out of frustration, some content providers have turned to brute force to combat ad blockers. Forbes, for example, is <a href="http://digiday.com/publishers/forbes-ad-blocking-test-hasnt-cost-us-technology-readers/" target="_blank" rel="noopener">walling off all ad-blocking Internet users</a> from its <a href="http://www.forbes.com/" target="_blank" rel="noopener">Forbes.com</a> site. Others have taken a softer approach, <a href="https://www.buzzfeed.com/matthewzeitlin/the-new-york-times-is-experimenting-with-blocking-ad-blocker?utm_term=.rl4JEr65#.fl2jAkK5" target="_blank" rel="noopener">appealing to their site visitors to resist blockers</a>.More Promising Approaches?A better solution than the approaches discussed above is for online advertising to become more compelling and less obtrusive. Improving consumers’ online advertising experiences might be the publishing industry’s answer to the ad-blocker problem because, while a majority of the consumers who install ad blockers do it because they find most ads distracting and useless, a sizable portion of ad-blocker users have expressed an appetite for some online ads.While 45 percent of the ad-blocker users surveyed in one recent survey said they install the software because they find the ads annoying (as opposed to installing it to stop online ads from <a href="http://www.networkworld.com/article/2176931/smb/online-advertising-poses-significant-security--privacy-risks-to-users--us-senate-report-says.html" target="_blank" rel="noopener">compromising their privacy</a> or the speed of their Internet connections), 30 percent said they block ads in order to remove only “a subset of specific advertising.” PaigeFair, the self-described “ad-blocking solutions” company that conducted the study that produced all of these statistics, advises marketers to “tailor an appropriate advertising experience” to that 30 percent.Syracuse University advertising professor Brian Sheehan <a href="http://adage.com/article/digitalnext/effective-native-ads-a-solution-ad-blockers/302476/" target="_blank" rel="noopener">writes</a> that one way to improve consumers’ experiences with online advertising is to “vastly improve native advertising,” not because it will prevent ad blockers from working but because, when it’s done with sufficient “flair, relevance and journalistic integrity,” native advertising can become “terrific content” and “a great read.” In other words, it could become advertising that consumers value and don’t necessarily want to block.Yet one has to wonder if marketers have the discipline to commit to creating more subtle, less obtrusive ads. If anything, the trend has certainly been in the opposite direction, toward in-your-face ads that are impossible to overlook. Even if advertisers were suddenly to tone down their act, it’s questionable whether the explosive growth of ad blockers can be reversed. Will Internet users, having grown accustomed to having their cake and eating it, too, be willing to abandon or even curtail their use of ad blockers? It seems unlikely.Many advertisers and publishers are seeking to make online ads more palatable by creating bespoke online advertising experiences.The Guardian, for example, is <a href="http://digiday.com/publishers/guardian-hints-next-steps-combatting-ad-blocking/" target="_blank" rel="noopener">reportedly</a> working with the Interactive Advertising Bureau to implement a customized ad experience that “puts the user in control.” James Harris, chief digital officer of the European media giant Carat, applauds the move, noting that “the rise of ad blocking is partly due to the industry ‘hitting people with bad-quality ads numerous times, via programmatic trading.’”But it’s hard to believe that bespoke advertising will stop Web users from employing ad blockers. The more ads are tailored to individual users’ interests, the greater the potential “creepiness factor” for many such users, driving them to install ad blockers. It’s a Catch-22 for the interactive industry: Users hate generic, irrelevant ads but they dislike highly targeted, directly relevant ads as well.The End of the Web as We Know It?With no real solution for reversing or even slowing the ad-blocking trend, the free Web model is headed toward major disruption. Currently, 16 percent of U.S. Web surfers use ad blockers—what happens when that number surpasses 30 percent, as it has in parts of Europe? Or reaches 50 percent?One thing is certain—for publishers, ad blockers are becoming the ultimate killer app. Without advertiser support, the amount of professionally produced, high-quality content made available online will decrease over time. By definition, professional content costs money to create and, without a return on investment, such content will disappear behind pay walls, or just disappear.We’ve seen how the rise of online publishing has led to the near demise of traditional publishing. But who could have anticipated that the online publishing industry would so quickly find itself facing its own existential threat?*    *    *This post is an expanded, “director’s cut” version of an op-ed piece that <a href="http://www.marketwatch.com/story/the-frightening-future-of-the-internet-more-ads-less-content-2016-05-19" target="_blank" rel="noopener">originally appeared</a> in <a href="http://www.marketwatch.com/" target="_blank" rel="noopener">MarketWatch</a>.For more on the business and legal challenges confronting online content creators, please see our recent <a href="https://www.sociallyawareblog.com/" target="_blank" rel="noopener">Socially Aware</a>  post, <a href="https://www.sociallyawareblog.com/2016/05/19/cash/" target="_blank" rel="noopener">Show Me the Money: Are Social Media Celebrities and Other Online Content Creators Really Raking in the Cash?</a>

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Will Ad Blockers Kill Online Publishing?

The Internet contains over 4.6 billion Web pages, most of which are accessible for free, making content that we used to have to pay for—news, videos, games—avai

Will Ad Blockers Kill Online Publishing?

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

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

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

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