Finding that President Trump’s Twitter feed constitutes a public forum, a federal judge in New York City held that it’s a First Amendment violation when the President or one of his assistants blocks a Twitter user from viewing or responding to one of the President’s tweets. As the New York Times points out, the decision “is likely to have implications far beyond Mr. Trump’s feed and its 52 million followers.” A blog post on the online version of the monthly magazine Reason provides some tips for politicians with social media accounts who want to stay on the right side of the law.

Speaking of President Trump, the former secretary of a federal judge is claiming the President got her fired. Okay, not exactly. The secretary, Olga Zuniga, who worked for a judge on Texas’s highest criminal court, filed a lawsuit alleging that the judge—a member of the GOP—terminated her employment because he found Facebook posts in which Zuniga criticized President Trump’s and other Republican politicians’ immigration policies. A post on Popehat, a fellow ABA Web 100 honoree, explores the strength of Zuniga’s case.

Unless you’ve been living in a cave, you know that the EU’s General Data Protection Regulation (GDPR) took effect last Friday, May 25th. Now that the dust has cleared, if you are interested in up-to-date information regarding GDPR developments and compliance insights, check out our GDPR Readiness Center. If you want details on what GDPR means for your outsourcing and other vendor agreements, you might want to attend our upcoming webinar.

The impact of GDPR is being felt across social media platforms in all sorts of ways. For example, in a move reportedly prompted by GDPR, Twitter has shut down accounts of those users who, at the time that they joined Twitter, were under 13 years of age, based on date-of-birth information voluntarily provided by such users during the registration process.

Facing an inbox full of companies’ privacy policy updates? You can blame that on the GDPR too. In fact, the onslaught of GDPR-induced privacy-policy updates inspired some pretty creative memes on Twitter.

Wait… the GDPR will also affect tourists taking photos with their phones?

Instagram is expanding its anti-bullying initiatives by using a machine-learning algorithm to filter out harassing comments and reviewing the accounts with an especially high number of blocked comments to determine whether the owners of those accounts have violated the platform’s community guidelines.

The still-unprofitable Snapchat will begin running six-second advertisements that its users will not be able to skip. These un-skippable commercials will not run during users’ personal stories, only during select Snapchat Shows—highly produced three-to-five minute programs from well-known entertainment companies.

The fascinating story of how Wired lost a small fortune in Bitcoin. . . . (Well, the Bitcoins are here, but the key has been destroyed.)

The Royal Wedding was a bigger topic on Pinterest than it was on Facebook. FastCompany speculates that it’s because Pinterest’s audience is predominantly women and reveals the subject of most of the Royal Wedding pins.

A recent German Federal Court of Justice decision may have a significant impact on content providers’ business models. Offering software that allows users to block advertising does not constitute an unfair commercial practice. Even providing advertisers with the option to pay for showing certain ads—a practice known as whitelisting—does not violate the unfair competition rules.

Issued on April 19, the decision involved a legal dispute between the ad blocking software provider Eyeo GmbH and the online-content provider Axel Springer (which also happens to be Germany’s largest publishing house). The decision overruled the Higher Regional Court of Cologne’s previous decision, which, like the Federal Court of Justice, did not categorize Eyeo’s offer of its ad blocking product as an unfair competition practice, but did categorize paid whitelisting as unlawful.

Axel Springer is now left with the final option of taking the case to the Federal Constitutional Court.

Background and core arguments of the parties

Eyeo, a German software company, offers the product AdBlock Plus, which allows Internet users to block ads online. The product became the most popular ad blocking software in Germany and abroad, with over 500 million downloads and 100 million users worldwide.

In 2011, the company started to monetize its product by offering a whitelisting service that gives advertisers the option to pay to show their ads. To get on Eyeo’s list of companies whose ads are not blocked, advertisers have to comply with Eyeo’s “acceptable advertising” conditions and share their ad revenue with the company. The conditions dictate the advertising’s features such as its placement, size, and—in the case of text advertising—color. Continue Reading German Federal Court: Unfair Competition Law No Basis to Ban Ad Blocking and Whitelisting

As Socially Aware readers know, social media is transforming the way companies interact with consumers. Learn how to make the most of these online opportunities while minimizing your company’s legal risks at Practising Law Institute’s (PLI) 2018 Social Media conference, to be held in San Francisco on Thursday, February 1st, and in New York City on Wednesday, February 14th; both events will be webcasted. The conference will be chaired by Socially Aware co-editor John Delaney, and our other co-editor, Aaron Rubin, will also be presenting at the event.

Topics to be addressed will include:

  • The new business opportunities—and legal risks—that social media is providing for businesses
  • What every company should know about online contractual eco-systems
  • How to avoid running afoul of the law when employing social media influencers and using marketing tools like user-generated content, hashtags and native advertising online
  • The privacy-related developments that have arisen in connection with geo-location tracking and interest-based advertising
  • How to minimize the risks that accompany social media use in the workplace

In addition, an in-house panel will provide creative solutions to real-world social-media-related issues and address emerging social media trends.

Don’t miss this opportunity to get up-to-date information on the fast-breaking developments in the critical area of social media so that you can most effectively meet the needs of your clients.

For more information or to register, please visit PLI’s website here. We hope to see you there!

Happy 2018 to our readers! It has become a Socially Aware tradition to start the New Year with some predictions from our editors and contributors. With smart contracts on the horizon, the Internet of Things and cryptocurrencies in the spotlight, and a number of closely watched lawsuits moving toward resolution, 2018 promises to be an exciting year in the world of emerging technology and Internet law.

Here are some of our predictions regarding tech-related legal developments over the next twelve months. As always, the views expressed are not to be attributed to Morrison & Foerster or its clients.

From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding Web Scraping

Web scraping is an increasingly common activity among businesses (by one estimate, web-scraping bots account for as much as 46% of Internet traffic), and is helping to fuel the “Big Data” revolution. Despite the growing popularity of web scraping, courts have been generally unsympathetic to web scrapers. Last August, however, web scrapers finally received a huge victory, as the U.S. District Court for the Northern District of California enjoined LinkedIn from blocking hiQ Labs’ scraping of publicly available user profiles from the LinkedIn website in the hiQ Labs, Inc. v. LinkedIn Corp. litigation. The case is now on appeal to the Ninth Circuit; although my sense is that the Ninth Circuit will reject the broad scope and rationale of the lower court’s ruling, if the Ninth Circuit nevertheless ultimately sides with hiQ Labs, the web scraper, the decision could be a game changer, bringing online scraping out of the shadows and perhaps spurring more aggressive uses of scraping tools and scraped data. On the other hand, if the Ninth Circuit reverses, we may see companies reexamining and perhaps curtailing their scraping initiatives. Either way, 2018 promises to bring greater clarity to this murky area of the law.

Regarding the Growing Challenges for Social Media Platforms

2017 was a tough year for social media platforms. After years of positive press, immense consumer goodwill and a generally “hands off” attitude from regulators, last year saw a growing backlash against social media due to a number of reasons: the continued rise of trolling creating an ever-more toxic online environment; criticism of social media’s role in the dissemination of fake news; the growing concern over social media “filter bubbles” and “echo chambers”; and worries about the potential societal impact of social media’s algorithm-driven effectiveness in attracting and keeping a grip on our attention. Expect to see in 2018 further efforts by social media companies to get out ahead of most if not all of these issues, in the hopes of winning over critics and discouraging greater governmental regulation.

Regarding the DMCA Safe Harbor for Hosting of User-Generated Content

The backlash against social media noted in my prior item may also be reflected to some extent in several 2017 court decisions regarding the DMCA safe harbor shielding website operators and other online service providers from copyright damages in connection with user-generated content (and perhaps in the CDA Section 230 case law discussed by Aaron Rubin below). After nearly two decades of court decisions generally taking an ever more expansive approach to this particular DMCA safe harbor, the pendulum begun to swing in the other direction in 2016, and this trend picked up steam in 2017, culminating in the Ninth Circuit’s Mavrix decision, which found an social media platform provider’s use of volunteer curators to review user posts to deprive the provider of DMCA safe harbor protection. Expect to see the pendulum continue to swing in favor of copyright owners in DMCA safe harbor decisions over the coming year.

Regarding Smart Contracts

Expect to see broader, mainstream adoption of “smart contracts,” especially in the B2B context—and perhaps litigation over smart contracts in 2019 . . . .

From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding the CDA Section 230 Safe Harbor

We noted previously that 2016 was a particularly rough year for Section 230 of the Communications Decency Act and the immunity that the statute provides website operators against liability arising from third-party or user-generated content. Now that 2017 is in the rear view mirror, Section 230 is still standing but its future remains imperiled. We have seen evidence of Section 230’s resiliency in recent cases where courts rejected plaintiffs’ creative attempts to find chinks in the immunity’s armor by arguing, for example, that websites lose immunity when they use data analytics to direct users to content, or when they fail to warn users of potential dangers, or when they share ad revenue with content developers. Nonetheless, it is clear that the knives are still out for Section 230, including in Congress, where a number of bills are under consideration that would significantly limit the safe harbor in the name of combatting sex trafficking. I predict that 2018 will only see these efforts to rein in Section 230 increase. Continue Reading 2018: Predictions From Socially Aware’s Editors and Contributors

With much fanfare, the Federal Trade Commission (FTC) continues to take actions relating to so-called “social media influencers” who allegedly fail to disclose material connections to the products or brands they endorse. Recurring enforcement actions and guidance—and the FTC’s ongoing promotion of its own efforts, such as through Twitter chats—make it clear that the FTC believes that its message has still not been heard by all of the players in this advertising ecosystem, including influencers themselves.

In short, any endorsements in any medium where the endorser has a material connection of any kind to the endorsed advertiser must be disclosed.

The most recent developments include an enforcement action against a company—and two of its officers—in connection with endorsements of the company made by the officers in YouTube videos and in social media.  Before turning to this case, however, we provide a brief overview of how the FTC has gotten here. Continue Reading Brands Beware: FTC Continues Campaign on Social Media Influencer Disclosures

In 2016, brands spent $570 million on social influencer endorsements on Instagram alone. This recode article takes a looks at how much influencers with certain followings can command, and whether they’re worth the investment.

And don’t overlook the legal issues associated with the use of social media influencers; the FTC just settled its first complaint against social media influencers individually. The case involved two online gamers who posted videos of themselves promoting a gaming site that they failed to disclose they jointly owned.

In a precedent setting opinion, the European Court of Human Rights held that the right to privacy of a Romanian man, Bogdan Bărbulescu, was violated when Bărbulescu’s employer, without explicitly notifying Bărbulescu, read personal messages that Bărbulescu sent from an online account that Bărbulescu had been asked to set up for work purposes.

In other European news, the attorney general for England and Wales, Jeremy Wright, MP, has begun an inquiry into whether that jurisdiction needs to impose restrictions on social media in order to help ensure criminal defendants there get a fair trial.

More than half of Americans 50 or older now get their news from social media sites, Pew Research Center’s 2017 social media survey shows.

Celebrities who promote initial coin offerings (ICOs) on social media risk violating laws that apply to the public promotion of securities.

Facebook developed an artificial intelligence robot that can express emotion by making realistic facial expressions at appropriate times.

A college student has sued Snapchat and the Daily Mail for alleged defamation and invasion of privacy arising from the use of the student’s name and image on Discover, Snapchat’s social news feature, under the headline, “Sex, Drugs and Spring Break—College Students Descent on Miami to Party in Oceans of Booze and Haze of Pot Smoke.”

Is the threat of artificial intelligence disrupting a slew of industries less imminent than we thought?

Google created a website that uses fun illustrations to show which “how to” queries its users entered into the search engine most.

The popularity of online videos that viewers can appreciate with the sound turned off has led to striking similarities between early silent film and modern social video.

Instagram is now allowing a limited number of users to identify branded content with a “paid partnership” subhead instead of using hashtags like #ad and #sponsored to identify sponsored posts. The platform says it plans to police paid sponsors’ disclosure obligations eventually, but—for now—educating and gathering feedback from Instagram’s community and launch partners is all Instagram hopes to achieve with the branded content tool.

Authorities in Helsinki plan to debut in the autumn what will be the world’s first regular driverless transportation system to reach the masses: public, autonomous-bus services. Will the job of “bus driver” one day join the list (along with “silent movie piano accompanist,” “elevator operator” and “switchboard operator”) of occupations rendered obsolete by new technologies?

On free speech grounds, a German parliamentary body struck down a draft German law that would have imposed up to 50 million euros in fines on social media companies that failed to remove or block racist and fake news posts within 24 hours or seven days, depending on whether the content’s racist or false nature is unambiguous.

To ensure President Trump’s tweets from the official @POTUS account and his personal account are preserved for future reference, Rep. Mike Quigley has introduced the COVFEFE Act, which would amend the President Records Act to include social media posts—a change that would ensure the President’s deleted tweets are documented for archival purposes and would make deleting tweets a violation of the Presidential Records Act subject to disciplinary action.

In a post on its “newsroom” page, Facebook published a list of seven “Hard Questions”—inquiries that address many of the most pressing issues today’s social media companies face, from the definition of “fake news,” to the fate of deceased users’ accounts. The post instructs readers to weigh in by emailing Facebook at hardquestions@fb.com.

Hoping to expand its user base, Twitter made design changes to its app again.

Examining one of the many ways Internet of Things devices pose security risks, Ars Technica describes a security consultant’s demonstration of how, using terrestrial radio signals, hackers can control a slew of Smart TVs, spying on the TVs’ owners using the TVs’ cameras and microphones and attacking other devices in the TVs’ owners’ home networks.

Despite the impact social media marketing can have on brand reputation, 60% of Fortune 500 CEOs reportedly have no social media presence at all.

Marketing Land and Business Insider published pieces describing how to use Snapchat’s new self-serve ad-buying tool, Ad Manager, the messaging app’s attempt to make advertising on Snapchat simpler and more accessible to small businesses.

Inc. Magazine provides a clear explanation of how the blockchain works, which industries it’s likely to change and what’s standing in the way of the blockchain’s widespread adoption.

There’s a new dating app for singles with little patience for protracted email exchanges.

Twitter updated its online Privacy Policy to disclose that Twitter will be personalizing content and facilitating interest-based advertising by sharing information about its users’ online activity both on and off the microblogging site.

Since YouTube resolved to give brands greater control over the kind of content that their ads appear alongside, many of the platform’s content creators and personalities have seen their ad revenue plummet, and they’re not sure whether it’s a result of major companies continuing to avoid the platform, new ad-buying methods, or YouTube algorithms flagging their content as inappropriate.

A recently-released ABA ethics opinion states that, for communications with clients involving highly sensitive confidential client information, lawyers may need to take extra steps beyond using unencrypted email to guard against cyberthreats.

An IBM application built on its Watson artificial intelligence platform and designed to help financial services companies monitor their outside counsel spend reportedly saved one corporate customer close to $400 million a year in legal fees.

By advertising on quality news sites (and not just the big social media platforms where brands are currently spending the bulk of their online advertising dollars), corporate America can save not only critical watchdog journalism but also democracy itself, writes The New York Times’s Jim Rutenberg,

Has the influencer marketing model been jeopardized by the fiasco that was the Fyre Festival, which celebrity influencers including Kendall Jenner and Bella Hadid allegedly endorsed “without any proof of concept” and, contrary to FTC guidance, allegedly promoted on social media without clarifying that their posts were paid endorsements?

A new mental health app offers users support between professional therapy sessions by allowing them to anonymously message fellow members for support and by employing an artificial intelligence-based natural language processing system that can recognize and delete abusive messages and refer emergencies to a human moderator.

Wendy’s awarded a year’s worth of its chicken nuggets to a 16-year-old whose tweet asking the restaurant chain for a 365-day supply of the fast food went viral and broke Ellen DeGeneres’s record for the most re-tweeted post on Twitter (3.42 million retweets and counting).

A nice overview of the rules on researching jurors’ social media accounts in various jurisdictions from Law.com.

The importance of appearing at the top of Google search results, especially on mobile devices, is driving retailers to spend more and more on the search engine’s product listing ads, which include not just text but also the photos of products.

Researchers at the Massachusetts Institute of Technology designed a mobile robot that 3D-printed a building that is 50-feet-wide in 14 hours.

In the second half of 2016, Facebook received 9% more global government requests for users’ account data and—largely because users had stopped posting images of the 2015 Paris terrorist attack victims’ remains, which was against French law—28% fewer global government requests to remove content that violates local law.

After Kashmiris posted photos and videos depicting alleged military abuse in the days following a violence-plagued local election, authorities in the Indian-controlled region banned 22 social media sites, claiming it was necessary to restore order.

At the UEFA Champions League final in Cardiff, Wales, this summer, British police will pilot a new automated facial recognition (AFR) system to scan the faces of attendees and compare them to a police “persons of interest” database.

To show concerned citizens—and criminals—that they mean business, police in an Alabama city are live-broadcasting arrests on Twitter.

The data collected by the physical-activity-tracking device worn by a Connecticut murder victim contradicts the timeline of events given by her husband, a suspect.

One of the Kardashians is being sued by a photo agency for allegedly copying a copyrighted photo of her and posting it to her Instagram account.

And on the subject of user-generated content, owners of video content that is posted by users to Facebook without authorization can now claim ad earnings for the infringing content and set automated rules that will determine when infringing content should be blocked.

The editor of the MIT Technology Review provided interesting insights to Chatbots Magazine regarding the future and current state of artificial intelligence.

Police in Silicon Valley arrested a man for allegedly knocking down a 300-pound security robot while he was intoxicated.

A New York State senator has introduced a bill that would make posting footage of a crime to social media with the intention of glorifying violence or becoming famous punishable by up to four years in prison and fines.

Instagram hit the 700-million-user mark.

Brands spent 60% more on social media advertising in the first quarter of 2017 than they did in the same quarter last year, a new report shows.

But savvy brands will do more to leverage social media than just buy advertising, according to a columnist in Entrepreneur. Chatbots that can interact with customers on private messaging networks and in connection with in-app purchasing are the next big things.

And while we’re on the subject of private messaging networks, Tumblr is launching its own version, called Cabana. It encourages six friends to “hang out” and watch YouTube videos together.

Pointing out the inadequacy of many celebrities’ methods of disclosing their status as paid endorsers of the products they promote on Instagram, the FTC sent a letter to 90 high-profile social media users that provides some guidance on how to fulfill the endorsement guides’ requirement that sponsored posts be identified in a “clear and conspicuous” way.

LinkedIn has updated its terms of service and privacy policy, reportedly to make way for new platform features such as identifying when other LinkedIn members are in physical proximity to you, making available “productivity bots” to assist you in interacting with members of your LinkedIn network and allowing third-party services to display your LinkedIn profile to their users.

Facial recognition systems will soon be used to identify visa holders as they leave the United States, raising civil rights questions.

The U.S. population’s political polarization isn’t a result of the rise of social media, a new working paper issued by the National Bureau of Economic Research suggests, because hyper-partisanship is most prevalent among older Americans who are less likely than other Americans to consume media online.