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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Chevy Kelly, a partner in the UK-based Social Media Leadership Forum, recently sat down with Socially Aware’s own Sue McLean, a Social Media Leadership Forum member, to discuss the legal implications of UK companies’ use of social media as part of their marketing strategies. Chevy Kelly: In your opinion, what are the top three legal risks that organizations in the United Kingdom face when engaging in social media?Sue McLean: Compliance with relevant advertising and marketing rules is a key priority. All relevant rules, whether it’s the CAP Code, unfair trading regulations, FCA promotions rules, are concerned with organizations treating the customer fairly and being transparent. Companies will be experienced with applicable rules in terms of traditional media but, of course, social media brings its own challenges, including space/character limitations and the immediacy element of social media bypassing the time for review and approval protocols built into “old media” usage.Data protection is also a key challenge. Whether you’re collecting personal information from customers via your social media channels, mining data from social media platforms or carrying out Big Data analytics, you need to ensure that you comply with relevant privacy laws. If you’re a global business, unfortunately that means a myriad of different laws. It’s not just a question of compliance. Showing that you take customers’ data seriously will help build trust; it may even help give you a competitive advantage.Lastly, companies need to continue to focus on social media policies and the education and training of employees. Given the rate of change, companies really need to regularly review their policies and practices. New platforms can trigger new issues, as we have seen with instant messaging, as well as visual, anonymous, self-deleting platforms. Get social media right and employees can be fantastic brand ambassadors; but get it wrong and their activity could result in damage to your reputation and potentially legal or regulatory action.CK: Are UK lawmakers able to keep up with the rate of change and disruption in the digital era and how are they coping to legislate for every scenario?SM: No. Given the rate of technological change we have seen over the past decade and are continuing to see (whether it’s social media, Big Data, the Internet of Things, drones, etc.), the law is always playing catch-up; it’s virtually impossible for the lawmakers to keep up.Also, it often takes so long to bring in a new law, that by the time it’s adopted it may be out of date. By way of example, the long-awaited Data Protection Regulation was proposed back in 2012 to reflect technological changes, including social media—but is still being debated in Europe and, even if it is finalized this year, there will be a transition period of two years before the law applies.But it’s not always a case of bringing in new laws. Often it’s about interpreting how existing laws can apply to new platforms. That’s certainly the approach the FCA has taken (at least up until now) with respect of the use of social media by financial organizations, the approach that their rules are media neutral and apply to social media in the same way as they apply to traditional media. It’s also the approach the government has taken to trolling and other malicious behavior via social media—that the framework of laws we have are fit for purpose in this digital age (even if they were designed in a world before social media, e.g., to apply to poison-pen letters).And, of course, while laws are inherently national, social media is a global phenomenon. Unless laws are very closely harmonized (which they are not), social media users face uncertainty because of different approaches to law and regulation in the key countries.CK: Would you say that large organizations are taking the legal risks surrounding social media as seriously as other traditional communications channels?SM: I’m not sure it’s a case of not taking the legal risks of social media seriously. I think it’s more a case of organizations being less experienced with social media generally, and that includes legal and compliance departments. If social media is being run out of a marketing/communications team then they will be very experienced with the legal risks of traditional media. But social media triggers new, different types of risk and both the marketing/ communications team and the legal and compliance teams are trying to figure out how to handle those risks.And, of course, not all social media platforms are the same, and we are getting new platforms all the time. Companies may have become just about comfortable with Facebook and Twitter, but now they have to deal with, say, Pinterest, Instagram, Snapchat. And that’s just in the West; if you are a global organization, it’s likely that you have to deal with a variety of platforms across the different regions.Of course, it’s not just a question of using social media to promote your business and interact with customers. If you’ve implemented an enterprise social media platform for your employees, that throws up a whole host of other issues.CK: If you were to reference an example to give a wake-up call to an organization that may be laid-back in their attitude to social media governance, what would it be?SM: There are a lot of examples I can point to where companies’ social media activity has ended up making headlines for all the wrong reasons. For example, the HMV case where the company didn’t take sufficient control of its Twitter account and employees managed to send a series of angry tweets before the company took control. In fact, I expect that a lot of companies still don’t put enough focus on social media in the context of insolvency and crisis management. It’s not just a question of implementing proper social media governance to avoid legal sanctions. In many cases, it’s equally important to avoid the risk of damage to the company’s reputation.CK: Have you found that having an in-depth understanding of the law actually makes organizations more risk averse, or are they more averse when they don’t know the boundaries?SM: A number of companies have taken limited steps into social media because they think that they should be on it, but haven’t fully engaged because of a lack of understanding of social media and a fear of the potential legal risks. But legal risks must be weighed up against the damage that may be caused to the business of not properly engaging. If you appreciate what the risks are, you can weigh up those risks against the business benefit, and also the damage that may be caused to your business of not engaging. Whereas, if you don’t understand the nature or level of the risks, you could be almost paralyzed into inaction. In most cases, the legal risks are not insurmountable. Companies need to exercise the same common sense, judgment and risk-balancing that they use with other media.

Five Vital Questions on the Implications of UK Law on Social Media

Chevy Kelly, a partner in the UK-based Social Media Leadership Forum, recently sat down with Socially Aware’s own Sue McLean, a Social Media Leadership Forum me

Five Vital Questions on the Implications of UK Law on Social Media

One of the fascinating things about social media is that, from a marketing standpoint, each social media platform offers its own unique set of features and opportunities; as a result, a marketing strategy that proves successful on one platform is likely to be a flop when applied to another platform. Each platform requires a marketing strategy tailored to the particular strengths of that platform.(By the way, the same is true with respect to legal risks associated with social media platforms – each platform presents unique risk issues – but that’s a topic for another blog post.)So this brings us to Snapchat, a red-hot, innovative social media platform that seeks to join Facebook, LinkedIn and Twitter as one of the giants in the industry. With <a href="http://www.adweek.com/news/technology/snapchat-promises-gorgeous-advertising-its-new-discover-channels-162570" target="_blank" rel="noopener">100 million monthly active users</a>, a valuation that could rise as high as <a href="http://bits.blogs.nytimes.com/2015/02/17/snapchat-said-to-seek-funding-at-up-to-19-billion-valuation/?hpw&rref=technology&action=click&pgtype=Homepage&module=well-region&region=bottom-well&WT.nav=bottom-well&_r=0" target="_blank" rel="noopener">$19 billion</a>, and a user base that primarily consists of <a href="http://time.com/3683969/snapchat-discover/" target="_blank" rel="noopener">13-to-25-year-olds</a>, the “disappearing messaging” platform Snapchat is on the radar of nearly every B2C company anxious to grow its brand on social media.But, for most businesses, advertising on Snapchat is likely to be cost-prohibitive; the company is <a href="http://www.adweek.com/news/technology/snapchat-asks-brands-750000-advertise-and-wont-budge-162359" target="_blank" rel="noopener">reportedly charging $750,000-a-day</a> for regular ads that appear in everyone’s feeds.According to marketing experts, however, businesses can nevertheless capitalize on Snapchat’s reach by launching promotions that capitalize on the sense of urgency that the platform’s disappearing messages create. That is, by embracing a strategy that takes into account the unique features of the Snapchat platform.Case in point: AdAge suggests that retailers <a href="http://adage.com/article/digitalnext/snapchat-retailers-kill-showrooming/296593/" target="_blank" rel="noopener">offer potential consumers in-store only coupons</a> with a surprise offer that they’ll learn the value of – 10% off or 30% off, for example – only upon reaching the check-out counter (the Snapchat user wouldn’t be able to open the snap containing the coupon before reaching the register because the coupon would disappear before he could redeem it).Other ways for companies to leverage Snapchat’s unique characteristics can be found in this Marketing Land <a href="http://marketingland.com/marketers-guide-snapchat-story-feature-117724" target="_blank" rel="noopener">article</a>.When it comes to social media marketing, one size does not fit all.

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Oh Snap! Social Media, Snapchat and the Need for Platform-Specific Marketing Strategies

Oh Snap! Social Media, Snapchat and the Need for Platform-Specific Marketing Strategies

One of the fascinating things about social media is that, from a marketing standpoint, each social media platform offers its own unique set of features and oppo

Advergames are online video games that are created in order to promote a brand, product or organization by immersing a marketing message within the game. They are typically accessed via an organization’s website or app, or via a social media platform. Advergames are not particularly new. The concept of advertising via gaming has been around since the 1980s and the term advergame was included in Wired magazine’s Jargon Watch column back in 2001. In the early days of the advergame, though, the medium was generally embraced by brands that targeted the youth market.  These days, the growth of tablets, smartphones and mobile apps, as well as the rise in popularity of online gaming, has led to the increased adoption of advergames by a wide variety of organizations, including charities, financial services firms, car manufacturers, toy makers and government agencies.Given the increased challenges of traditional advertising, advergames are considered a great way to help increase brand awareness and engagement—whether an organization is promoting a new product, educating, trying to grow its market, carrying out market research, or reaching out to prospective recruits. A key benefit of advergames is that users interact with a brand for far longer than they would with traditional forms of advertising. The best advergames can go viral and provide worldwide exposure and a shelf-life much longer than that of a traditional advert. For example, in 2013 Chipotle, the Mexican fast food chain, published a <a href="http://venturebeat.com/2013/09/30/chipotle-scarecrow-is-the-future-of-advergaming-on-mobile/" target="_blank" rel="noopener">Scarecrow advergame </a>that was downloaded 250,000 times within four days of its release.In this post, we will consider some of the legal issues that organizations operating in the UK will need to consider when employing advergames as a marketing tool.Advertising RulesThe first issue that an organization will need to consider is compliance with applicable advertising rules, as advergames are very likely to be regarded as advertising. That’s certainly the case in the UK.In May 2012, the Advertising Standards Agency (ASA), the UK’s independent regulator of advertising, published guidance on the use of advergames. In the guidance, the ASA made clear that advergames in paid-for space online are covered by the relevant rules of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (<a href="https://www.asa.org.uk/codes-and-rulings/advertising-codes.html" target="_blank" rel="noopener">the CAP Code</a>). In addition, advergames that are made available on an organization’s website or app or via a social media platform under the organization’s control, and that are directly connected with the supply or transfer of goods, services, opportunities or gifts, must comply with the CAP Code.Particular issues arise when advergames are considered appealing to children. The CAP Code includes an overarching principle that marketers must be careful when addressing children in marketing, and must bear in mind that children’s understanding of, and reaction to, marketing communications will be affected by their age and experience, and the context in which the message is delivered. The CAP Code also requires that advertisements be obviously identifiable as such. When deciding whether an advergame complies with this rule, the ASA will consider the context in which the advergame is made available; any references to the product, brand or organisation in or around the game; and the target audience.To date, many of the complaints made to ASA about advergames concern their use by food manufacturers to promote foods perceived to be unhealthy. Under Rule 15.11 of the CAP Code, advertisements must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children. In addition, Rule 15.15 states that, in general, food advertisements that are targeted directly at pre-school or primary school children must not include licensed characters or celebrities popular with children.By way of example, in 2012, the ASA considered a Krave cereal advergame made available to Facebook users who had, via their Facebook profile information, confirmed themselves to be aged 16 or over.  The advergame featured a character, the Krave Krusader, which players controlled in order to collect chocolate and score points. The complainant considered that the advergame encouraged poor nutritional habits and an unhealthy lifestyle in children in breach of the CAP Code. However, the ASA rejected the complaint, precisely because the advergame was targeted at Facebook users over the age of 16.In the same year, the <a href="http://asa.org.uk/Rulings/Adjudications/2012/8/Swizzels-Matlow-Ltd/SHP_ADJ_196069.aspx" target="_blank" rel="noopener">ASA considered</a> advergames published on the website of a confectionary manufacturer, www.swizzels-matlow.com. It held that a “Cola Capers” game that was (i) relatively long in duration, (ii) aimed at young children, and (iii) condoned eating a large number of sweets while hiding such consumption from the user’s parents irresponsibly encouraged poor nutritional habits and an unhealthy lifestyle in children. In addition, it held that certain games involving the character Scooby Doo were aimed at primary-school children and therefore in breach of the CAP Code.It only takes one complaint for the ASA to investigate an advergame, and if the ASA upholds the complaint, the offending advertisement is very likely to be banned. As the ASA is a non-statutory body it does not have the power to fine advertisers or take advertisers to court.However, some parties want more action. In March 2014, the UK’s Local Government Association (LGA), which represents almost 400 councils in England and Wales, called for pop-up health warnings to accompany “addictive” advergames used by food firms “targeted at children.” The <a href="http://www.asa.org.uk/News-resources/Media-Centre/2014/Food-advertising-and-children-Making-sure-we-have-a-healthy-debate-part-2.aspx" target="_blank" rel="noopener">ASA responded</a> to this call by making reference to its recent bans and stating that it would not hesitate to ban any other advergames that breached the CAP Code. However, in May 2014, the University of Bath’s Institute for Policy Research issued a policy brief, Advergames: It’s not child’s play, looking at the use by food firms of advergames to promote high-salt, high-sugar and high-fat food and drink products. The brief concluded that children up to the age of 15 do not recognize that advergames are advertising, and called for various actions, including an obligatory, clear, uniform labelling system for all children’s advergames. So, as you can see, this issue is not going away.Other IssuesIt’s not just a question of advertising rules. Some of the other key issues advertisers will need to consider when launching an advergame include:<ul><li>Terms of use for the advergame</li><li>Privacy and data protection laws</li><li>Consumer protection rules</li><li>Industry regulations affecting advertisements and promotions</li><li>App store rules and restrictions</li><li>Prize promotion rules</li><li>Intellectual property rights in the advergame</li><li>Ownership of data</li><li>Contracts with third-party providers (e.g., the game developer)</li></ul>ConclusionAdvergames are a fun, interactive marketing tool. However, it’s important to comply with all applicable rules to make sure that your advergame doesn’t give you publicity for all of the wrong reasons.

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What Are the Rules of the Advergame in the UK?

What Are the Rules of the Advergame in the UK?