03_01_Mar_SociallyAware_COVER1aThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media. In this edition, we offer tips for a successful—and legal—advertising campaign; we examine a New York State Appellate Division opinion significantly limiting

Contract

Courts have generally categorized online agreements into two types: “clickwrap” agreements and “browsewrap” agreements.

Clickwrap agreements—which require a user to check a box or click an icon to signify agreement with the terms—are usually enforceable under U.S. law, even where the terms appear in a separate hyperlinked webpage but where language accompanying the box or

The latest issue of our Socially Aware newsletter is now available here.

01_08__Jan_SociallyAware_COVER_v6In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we offer practical tips to help ensure the enforceability of website terms of use; we discuss the FTC’s ongoing efforts to enforce disclosure

[Editor’s Note: In response to the success of our earlier post on terms and conditions for mobile apps, two of our London-based colleagues have prepared a “remixed” version, which looks at the subject of mobile app terms and conditions from a European perspective. Enjoy!]

The mobile app has become the new face of business. It’s no longer sufficient to have a company website. More and more companies want a mobile app that users can download to their smartphones and easily access. It’s not 75601199_illustration-[Converted]difficult to see why. People are voting with their thumbs.

In 2015, overall mobile app usage grew by 58%, with lifestyle and shopping apps growing 81%, following previous 174% growth in 2014, according to FlurryMobile. Indeed, FlurryMobile figures show that mobile commerce now accounts for 40% of online commerce worldwide. Accordingly, the advantages of an app to business, from a customer marketing, engagement, service and awareness perspective, are clear.

Even traditionally conservative sectors such as financial services are being revolutionised by the mobile app. In 2015, the British Bankers Association identified that banking by smartphone and tablet has become the main way for UK customers to manage their finances, with mobile banking overtaking branches and the internet as the most popular way to bank.

If your company will be among the many businesses that launch a mobile app in Europe in 2016, one of the key legal protections your company will need in connection with such launch is an end user licence agreement (EULA). So, where do you start? Here at MoFo, we regularly review mobile app EULAs and we’ve noticed a number of issues that app developers don’t always get right. Here is our list of the key issues you will need to consider.

  1. One size does not fit all

Your EULA will be an important part of your strategy to help mitigate risks and protect your intellectual property in connection with your app. It’s unlikely that you would release desktop software without an EULA, and mobile apps (which are, after all, software products) warrant the same protection. While a number of mobile app providers such as Google provide a “default” EULA to govern mobile apps downloaded from their respective app stores, they also permit developers to adopt their own customized EULAs instead—subject to a few caveats, as mentioned below. Because the default EULAs can be quite limited and can’t possibly address all of the issues that your particular app is likely to raise, it’s generally best to adopt your own EULA in order to protect your interests.


Continue Reading Launching a Mobile App in Europe? Seven Things to Consider When Drafting the Terms & Conditions

iStock_000048822690_smThe European Commission has announced new draft laws that would give consumers new remedies where digital content supplied online is defective or not as described by the seller.

On Dec. 9, 2015, the European Commission proposed two new directives on the supply of digital content and the online sale of goods. In doing so, the Commission is making progress towards one of the main goals in the Digital Single Market Strategy (the “DSM Strategy”) announced in May 2015: to strengthen the European digital economy and increase consumer confidence in trading across EU Member States.

This is not the first time that the Commission has tried to align consumer laws across the EU; its last attempt at a Common European Sales Law faltered earlier this year. But the Commission has now proposed two new directives, dealing both with contracts for the supply of digital content and other online sales (the “Proposed Directives”).

National parliaments can raise objections to the Proposed Directives within eight weeks, on the grounds of non-compliance with the subsidiarity principle—that is, by arguing that that regulation of digital content and online sales is more effectively dealt with at a national level.

Objectives

Part of the issue with previous EU legislative initiatives in this area is that “harmonized” has really meant “the same as long as a country doesn’t want to do anything different.” This time, the Proposed Directives have been drafted as so-called “maximum harmonization measures,” which would preclude Member States from providing any greater or lesser protection on the matters falling within their scope. The Commission hopes that this consistent approach across Member States will encourage consumers to enter into transactions across EU borders, while also allowing traders to simplify their legal documentation by using a single set of terms and conditions for all customers within the EU.

An outline of the scope and key provisions of each of the Proposed Directives, as well as the effect on English law, are summarized after the jump.


Continue Reading Harmonizing B2C Online Sales of Goods and Digital Content in Europe

10-14-2015 3-48-13 PMThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we highlight five key social media law issues to address with your corporate clients; we discuss when social media posts are discoverable

Operators of social media platforms and other websites typically manage their risks by imposing terms of use or terms of service for the sites. As we previously wrote, websites must implement such terms properly to ensure that they are enforceable. Specifically, users must be required to manifest acceptance of the terms in a manner

iStock_000040880696_LargeSocial networking platforms have long faced the difficult task of balancing the desire to promote freedom of expression with the need to prevent abuse and harassment on their sites. One of social media’s greatest challenges is to make platforms safe enough so users are not constantly bombarded with offensive content and threats (a recent Pew

0813_CCIMAGE_iStock_000036595676_LargeWebsites sometimes present their terms of use (“TOU”) to users merely by including a link to those TOU on the website without requiring users to affirmatively accept the terms by, for example, checking a box or clicking an “I accept” button. As we have written previously, Courts tend to look disfavorably on such website

MobilePhone_56311774_thumbnailFor corporations, the mobile app is today’s website.

Back in the late 1990s, no self-respecting company, no matter how stodgy and old-fashioned, wanted to be without a website.

Today, the same is true with mobile apps. It doesn’t matter what industry a company is in—it needs to have an app that customers and potential