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.

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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Social Links: Statehouse v. Smartphone

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All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

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FINRA, having enacted new communications rules that specifically reference electronic communications, having issued two Regulatory Notices (linked <a href="http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p120779.pdf">here</a> and <a href="http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p124186.pdf">here</a>) providing guidance to the securities industry on social media, and having made social media and electronic communications exam priorities in two of the last three years, is now taking the next logical step:  conducting a sweep of broker-dealers to determine their compliance with the communications rules. In posting a Targeted Examination Letter—otherwise known as a sweep letter—on its website, FINRA invoked Rule 2210(c)(6), which provides for periodic spot checking by FINRA of firms’ written (including electronic) communications.FINRA’s sweep letter seeks, among other things:<ul><li>An explanation of how the firm is using social media at the corporate level in the conduct of its business;</li><li>An explanation of how the firm’s brokers generally use social media in conducting the firm’s business;</li><li>The firm’s written supervisory procedures concerning production, approval and distribution of social media communications; and</li><li>An explanation of how the firm monitors compliance with the firm’s social media policies.</li></ul>If past experience is any guide, FINRA likely will review the information with an eye to both establishing a baseline of current industry adherence to the communications rules and guidance, and to developing individual informal or formal disciplinary responses to firms whose procedures are seriously deficient. The sweep letter includes a request for information about the firm’s top 20 producing brokers who used social media to interact with retail investors. FINRA probably believes that, in view of these brokers’ levels of activity, examiners are more likely to find that some of these brokers failed in some way to comply with FINRA rules—such as FINRA content standards, or approval, review, recordkeeping and filing requirements—with respect to their use of social media to communicate with customers. FINRA might well seek to develop formal disciplinary actions against some of these brokers.As the firms that received this request gather responsive information, they should take a comprehensive look at their procedures for approval and review of communications using social media, and should determine whether these procedures are adequately documented, and whether their registered representatives, associated persons and compliance officers are adequately trained to apply these procedures. MoFo’s recent Guide to Social Media and the Securities Laws, and recent related presentation, are convenient places to start.

FINRA Issues Sweep Letter Regarding Use of Social Media

FINRA, having enacted new communications rules that specifically reference electronic communications, having issued two Regulatory Notices (linked here and here

FINRA Issues Sweep Letter Regarding Use of Social Media

On May 15, 2013, in a case filed against Google by an entrepreneur selling dietary supplements and cosmetics (the “Plaintiff”), the German Federal Court of Justice in Karlsruhe (Bundesgerichtshof, the “Federal Court”) <a href="http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=c65f284a41f0e933ed0b3b4a205c051e&nr=64163&pos=0&anz=1">ruled</a> that Google must remove any defamatory suggestions generated by its autocomplete search function. The Federal Court overturned an earlier ruling by the Cologne Higher Regional Court (Zivilkammer des Landgerichts Köln) favoring Google.The Plaintiff claimed that, when his name is entered into Google’s German-language search field, Google’s autocomplete search function offers defamatory suggestions linking him to “Scientology” and “fraud”. The Plaintiff claimed that he is not involved with Scientology and that he has never been accused of, or investigated for, fraud. He also observed that the search results generated by the autocomplete suggestions did not present or support any such connections. The Plaintiff sought an injunction against Google to block the autocomplete suggestions, as well as monetary damages for defamation of his personality rights and business reputation.While the Cologne Higher Regional Court held that no intelligible meaning can be attached to such autocomplete suggestions, the Federal Court disagreed. The Federal Court found that the search suggestions offered by the autocomplete function implied a factual connection between the Plaintiff and the suggested terms, and stated that search engine operators are responsible for defamatory autocomplete suggestions once they become aware of or have been alerted to such violations of personality rights and reputation. Once they become aware or are alerted, search engine operators have the responsibility under German law to remove such autocomplete suggestions and prevent any further violations.The case is currently being re-examined in the Cologne Higher Regional Court on remand to determine whether the autocomplete suggestions are in fact defamatory and infringe the personality rights and the honor of the Plaintiff. This means that the Cologne court will have to determine whether the suggestions at issue are factually correct, that is, whether there are facts justifying the association of the Plaintiff with the terms suggested by Google’s autocomplete function.When a user enables Google’s autocomplete function, lists of search queries appear automatically as such user begins typing a search term. This function expedites the search process, helps to avoid spelling mistakes and allows the user to view popular searches featuring the same search term. If a user is signed into his or her Google Account and has Google’s “Web History” feature enabled, Google’s autocomplete suggestions will also incorporate the user’s own past searches. According to the information provided on Google’s <a href="https://support.google.com/websearch/answer/106230?hl=en">Inside Search Help</a>, these “useful” suggestions are “a reflection of the search activity of all web users and the content of web pages indexed by Google.” Autocomplete suggestions are generated by Google’s algorithms “based on a number of factors (including popularity of search terms) without any human intervention.” The queries presented may therefore include “silly or strange or surprising terms and phrases.” Google explains that, while it strives to “reflect the diversity of content on the web (some good, some objectionable),” it also applies “a narrow set of removal policies for pornography, violence, hate speech, and terms that are frequently used to find content that infringes copyrights.”In its decision, the Federal Court ruled that the search suggestions offered by the autocomplete function suggest a factual connection between the Plaintiff and the terms “Scientology” and “fraud.” These terms have “negative connotations.” The Federal Court characterized Scientology as a “sect” that has a negative public perception due to unflattering media coverage. As for the term “fraud,” the Federal Court observed that, while the average Internet user may not be familiar with the precise meaning of this legal term, he or she is likely to associate the term with morally reprehensible conduct.The Federal Court also noted that Google presents its autocomplete function to its users as a service that contains suggestions based on searches most often made by other users of Google’s search service. This creates the expectation that search results based on such autocomplete suggestions will be helpful to users because they reflect actual searches. Hence, the autocomplete suggestions at issue here may imply a factual connection or link between the Plaintiff and the two negatively perceived terms.The Federal Court concluded that, if the associations with the search terms were wrong, the autocomplete function would constitute an infringement of the Plaintiff’s personality rights and reputation protected under Articles 823(1) and 1004 of the German Civil Code, in conjunction with Article 7(1) of the German Telemedia Act.The Federal Court also held Google responsible for the function because the search word combinations at issue were generated by Google’s own technology. The Federal Court emphasized that search engine operators are not required to regularly police content or check whether the content generated by algorithms is free of violations. Such an obligation would render the operation of a search engine impracticable, if not impossible. While automated filters should be applied for specific areas (such as child pornography), search engines cannot prevent all possible violations of individuals’ rights via the autocomplete function. However, once an operator becomes aware of unlawful violations of such rights, then it becomes responsible for removing the objectionable terms from its automated search suggestions and for preventing such violations from occurring in the future. The Federal Court’s approach indicates that individuals now have a legal right under German law to notify Google of any defamatory autocomplete search suggestions that infringe their personality rights and demand the immediate removal of such suggestions.Although the Federal Court’s ruling may be surprising to U.S. readers, we note that this ruling is consistent with earlier decisions in Italy (Tribunale Ordinario di Milano, March 24, 2011, 10847/2011, see link to the order (unofficial source)) and France (<a href="http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/832_12_23884.html">Cour de cassation – Première chambre civile, Arrêt n° 832 du 12 juillet 2012 (11-20.358)</a>) holding search engine operators responsible for claims arising from search-related functionality.

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Clients seek Alja for her no-nonsense approach to resolving complex local legal issues efficiently while providing strong representation for their most important privacy, whistleblowing, and investigatory matters. Alja is the go-to counsel for EU whistleblowing laws and leads strategy for the firms’ advisory efforts for compliance with whistleblowing rules and procedures globally. 

Alja Poler De Zwart

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German Court Holds Google Responsible for Its Search Suggestions

German Court Holds Google Responsible for Its Search Suggestions