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.

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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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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.

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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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Social Links: Statehouse v. Smartphone

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In an age of <a href="http://www.adweek.com/socialtimes/the-growth-of-social-media-from-trend-to-obsession-infographic/142323" target="_blank" rel="noopener">explosive growth for social media</a> and <a href="http://www.businessinsider.com/tv-ratings-decline-2015-9" target="_blank" rel="noopener">declining TV viewership numbers</a>, companies are partnering with so-called “influencers” to help the companies grow their brands. Popular users of Instagram, Vine, YouTube and other social media sites have <a href="http://variety.com/2014/digital/news/survey-youtube-stars-more-popular-than-mainstream-celebs-among-u-s-teens-1201275245/" target="_blank" rel="noopener">gained celebrity status</a>, generating millions of views, impressions and “likes” with every upload.Capitalizing on the shift from traditional media to online platforms, advertisers have begun to engage influencers in marketing campaigns. In a May 2015 study, 84% of marketers said they expect to launch at least one influencer marketing campaign in the next 12 months. Of those who had already done so, 81% said influencer engagement was effective. In a <a href="http://www.adweek.com/socialtimes/survey-tomoson-influence-marketing-budgets/617753" target="_blank" rel="noopener">separate study</a>, 22% of marketers rated influencer marketing as the fastest-growing online customer-acquisition method.So what is an influencer, anyway? By its broadest definition, an influencer is any person who has influence over the ideas and behaviors of others. When it comes to social media, an influencer could be someone with millions of followers or a user with just a few loyal subscribers. One thing that all influencers seem to have in common is that their audiences trust them. As such, influencers can be powerful advocates, lending credibility, increasing engagement and ultimately driving consumer actions.Influencer marketing can be an effective tool, but it’s important to do right. As recent Federal Trade Commission (FTC) and Food and Drug Administration (FDA) investigations demonstrate, online advertising is an area of relatively active enforcement, and influencer marketing presents a number of potential legal issues. The following tips can help companies lead successful influencer marketing campaigns while lessening the risk of liability.<h3>Disclosure Is Key</h3>In September, the <a href="https://www.ftc.gov/news-events/press-releases/2015/09/xbox-one-promoter-settles-ftc-charges-it-deceived-consumers" target="_blank" rel="noopener">FTC settled a case with Machinima</a>, a company that paid popular video bloggers to promote Microsoft’s Xbox One system through YouTube. Despite the hefty sums paid out to the gamers (one of whom pocketed $30,000), Machinima did not require them to make any disclosures. The FTC alleged that the failure to disclose the relationship between Machinima and the gamers was deceptive, in violation of Section 5 of the FTC Act. In its <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf" target="_blank" rel="noopener">Endorsement Guides</a>, the FTC has taken the position that a failure to disclose unexpected material connections between companies and the individuals who endorse them is deceptive.This case raises two important questions: (1) when is a disclosure required and (2) what constitutes adequate disclosure?Both of these questions were addressed in the FTC’s comments in its 2014 investigation of Cole Haan. The investigation involved a Pinterest marketing campaign in which the company encouraged users to create boards that included five Cole Haan shoe images as well as five images of the contestants’ “favorite places to wander.” Contestants were instructed to use the hashtag “#WanderingSole” in each pin description. The contestant with the most creative entry would receive a $1,000 shopping spree. The FTC alleged that the contest violated Section 5 of the FTC Act for failure to disclose contestants’ connection to Cole Haan.While the FTC ultimately decided not to pursue enforcement action, the agency explained in a <a href="https://www.ftc.gov/system/files/documents/closing_letters/cole-haan-inc./140320colehaanclosingletter.pdf" target="_blank" rel="noopener">closing letter</a> that entry into a contest to receive a significant prize constituted a “material connection” giving rise to a disclosure requirement. According to the <a href="https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking" target="_blank" rel="noopener">FTC Endorsement Guides</a>, a disclosure is needed whenever an endorser is given an incentive (financial or otherwise), and where knowledge of that incentive would affect the weight or credibility that audiences give to the endorser’s statements or actions. Companies that work with influencers to promote the companies’ brands need to make sure that audiences are aware of the relationship between the company and influencer.As to what makes a disclosure adequate, there are, unfortunately, no magical words. The FTC Endorsement Guides state that disclosures should be clear and unambiguous; consumers should be able to find them easily and should not have to look for them. In the Cole Haan case, the FTC did not believe that the #WanderingSole hashtag adequately communicated the financial incentive between the contestants and Cole Haan. According to the Endorsement Guides, hashtags like #Promotion, #Contest or #Sweepstakes probably would have done the trick.<h3>Find the Right Influencer</h3>Identifying the right influencer for a marketing campaign might seem like a business decision, rather than a legal one. From a return-on-investment perspective, it’s certainly important that the influencer’s personality and image align with the brand, and that the influencer’s audience comprises a viable customer base.Business concerns aside, finding the “right” influencer also has legal implications. According to the FTC Endorsement Guides, “You can’t talk about your experience with a product if you haven’t tried it.” Further, “if you were paid to try a product and you thought it was terrible, you can’t say it’s terrific.” Thus, it’s important for companies to remember that influencers must be bona fide users of the products they endorse and, if they provide a positive review, must have actually had a positive experience with those products.<h3>The Truth Will Set You Free</h3>Influencers—and the companies they work with—can also get themselves into trouble for making false or misleading statements while endorsing a brand or product. In August 2015, the <a href="http://www.wsj.com/articles/fda-sends-warning-letter-after-kim-kardashian-touts-morning-sickness-drug-1439401985" target="_blank" rel="noopener">FDA took issue with an Instagram post by Kim Kardashian</a> about a prescription drug for treating morning sickness. The post, which was sponsored by the drug manufacturer, promoted the medicine without mentioning its risks, a practice strictly forbidden by the FDA. The agency sent a warning letter alleging that post was “false or misleading in that it presents efficacy claims for [the drug], but fails to communicate any risk information associated with its use and it omits material facts.” The post was taken down in response.Companies should keep in mind that their influencers should not make any statements that their sponsoring companies can’t themselves make—in other words, no false, misleading or unsubstantiated claims.<h3>The Importance of Monitoring</h3>In recent actions, the FTC has repeatedly emphasized the importance of monitoring regimes. Cole Haan avoided enforcement action partly because it had a social media policy in place that adequately addressed issues like those described above. Likewise, <a href="http://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">Microsoft narrowly avoided being swept up in the Machinima case</a> because Microsoft had a robust compliance program.Ideally, companies working with influencers should have programs in place to train and monitor the influencers. It may not be enough to have the influencer sign an agreement about what he or she can and can’t do. According to the Endorsement Guides, sponsoring companies must instruct influencers on their responsibilities, explain the kinds of statements they can and can’t make, periodically monitor influencers’ behavior and follow up if they are not playing by the rules.<h3>Know Your Intellectual Property Rights</h3>Finally, companies should keep in mind the host of intellectual property and related issues that could arise in influencer marketing, including trademark, copyright, privacy and publicity concerns. For example, companies may give influencers the rights to use corporate logos, branded materials or other company-owned content, but these rights should be limited to intended uses in connection with particular marketing campaigns. Further, if companies wish to own or use any influencer-generated content, those rights would ideally be documented in an assignment or license to the company.In sum, influencer marketing can be a powerful tool, but it is important to be cognizant of potential legal concerns. Advertisers who keep these issues in mind will be in a better position to make the most of this exciting new marketing strategy.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign

Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign

In an age of explosive growth for social media and declining TV viewership numbers, companies are partnering with so-called “influencers” to help the companies 

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

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