Social Media Addiction

Social Media was created as an educational and informational resource for American Citizens. Nonetheless, it has become a tool for AI bots and tech companies to predict our next moves by manipulating our minds on social media apps. Section 230 of the Communications Decency Act helped create the modern internet we use today. However, it was initially a 1996 law that regulated online pornography. Specifically, Section 230 provides legal immunity from liability for internet services and users for content posted online. Tech companies do not just want to advertise to social media users but instead want to predict a user’s next move. The process of these manipulative tactics used by social media apps has wreaked havoc on the human psyche and destroyed the social aspects of life by keeping people glued to a screen so big tech companies can profit off of it.

Social media has changed a generation for the worse, causing depression and sometimes suicide, as tech designers manipulate social media users for profit. Social media companies for decades have been shielded from legal consequences for what happens on their platforms. However, due to recent studies and court cases, this may be able to change and allow for big tech social media companies to be held accountable. A former Facebook employee, France Haugen, a whistleblower to the Senate, stated not to trust Facebook as they knowingly pushed products that harm children and young adults to further profits, which Section 230 cannot sufficiently protect. Haugen further states that researchers at Instagram (a Facebook-owned Social Media App) knew their app was worsening teenagers’ body images and mental health, even as the company publicly downplayed these effects.

There is a California Bill, Social Media Platform Duty to Children Act, that aims to make tech firms liable for Social media Addiction in children; this would allow parents and guardians to use platforms that they believe addicted children in their care through advertising, push notifications and design features that promote compulsive use, particularly the continual consumption of harmful content on issues such as eating disorders and suicide. This bill would hold companies accountable regardless of whether they deliberately designed their products to be addictive.

Social Media addiction is a psychological, behavioral dependence on social media platforms such as Instagram, Snapchat, Facebook, TikTok, bereal, etc. Mental Disorders are defined as conditions that affect ones thinking, feeling, mood, and behaviors. Since the era of social media, especially from 2010 on, doctors and physicians have had a hard time diagnosing patients with social media addiction and mental disorders since they seem to go hand in hand. Social Media addiction has been seen to improve mood and boost health promotions with ads. However, at the same time, it can increase the negative aspects of activities that the youth (ages 13-21) take part in. Generation Z (“Zoomers”) are people born in the late 1990s to 2010s with an increased risk of social media addiction, which has been linked to depression.

A study measured the Difficulties in Emotion Regulation Scale (“DEES”) and Experiences in Close Relationships (“ECR”) to characterize the addictive potential that social media communication applications have based on their measure of the brain. The first measure in the study was a six-item short scale consisting of DEES that was a 36-item, six-factor self-report measure of difficulties, assessing

awareness of emotional responses,
lack of clarity of emotional reactions,
non-acceptance of emotional responses,
limited access to emotion regulation strategies perceived as applicable,
difficulties controlling impulses when experiencing negative emotions, and
problems engaging in goal-directed behaviors when experiencing negative emotions.

The second measure is ECR-SV which includes a twelve-item test evaluating adult attachment. The scale comprised two six-item subscales: anxiety and avoidance. Each item was rated on a 7-point scale ranging from 1 = strongly disagree to 7 = strongly agree, which is another measure of depression, anxiety, and mania were DSM-5. The results depict that scoring at least five of the nine items on the depression scale during the same two-week period classified depression. Scoring at least three of the six symptoms on the anxiety scale was to sort anxiety. Scoring at least three of the seven traits in the mania scale has classified mania.

The objectives of these studies were to clarify that there is a high prevalence of social media addiction among college students and confirms statistically that there is a positive relationship between social media addiction and mental disorders by reviewing previous studies.

The study illustrates that there are four leading causes of social media abuse: 1)The increase in depression symptoms have occurred in conjunction with the rise of smartphones since 2007, 2) Young people, especially Generation Z, spend less time connecting with friends, and they spend more time connecting with digital content. Generation Z is known for quickly losing focus at work or study because they spend much time watching other people’s lives in an age of information explosion. 3) An increase in depression is low self-esteem when they feel negative on Social Media compared to those who are more beautiful, more famous, and wealthier. Consequently, social media users might become less emotionally satisfied, making them feel socially isolated and depressed. 4) Studying pressure and increasing homework load may cause mental problems for students, therefore promoting the matching of social media addiction and psychiatric disorders.

The popularity of the internet, smartphones, and social networking sites are unequivocally a part of modern life. Nevertheless, it has contributed to the rise of depressive and suicidal symptoms in young people. Shareholders of social media apps should be more aware of the effect their advertising has on its users. Congress should regulate social media as a public policy matter to prevent harm, such as depression or suicide among young people. The best the American people can do is shine a light on the companies that exploit and abuse their users, to the public and to congress, to hold them accountable as Haugen did. There is hope for the future as the number of bills surrounding the topic of social media in conjunction with mental health effects has increased since 2020.

Shadow Banning Does(n’t) Exist

Shadow Banning Doesn’t Exist

#mushroom

Recent posts from #mushroom are currently hidden because the community has reported some content that may not meet Instagram’s community guidelines.

Dear Instagram, get your mind outta the gutter! Mushrooms are probably one of the most searched hashtags in my Instagram history. It all started when I found my first batch of wild chicken-of-the-woods mushrooms. I wanted to learn more about mushroom foraging, so I consulted Instagram. I knew there were tons of foragers sharing photos, videos, and tips about finding different species. But imagine not being able to find content related to your hobby?

What if you loved eggplant varieties? But nothing came up in the search bar? Perhaps you’re an heirloom eggplant farmer trying to sell your product on social media? Yet you’ve only gotten two likes—even though you added #eggplantman to your post. Shadow banned? I think yes.

The deep void of shadow banning is a social media user’s worst nightmare. Especially for influencers whose career depends on engagement. Shadow banning comes with so many uncertainties, but there are a few factors many users agree on:

1. 1. Certain posts and videos remain hidden from other users
  2. It hurts user engagement
  3. It DOES exist

#Shadowbanning

Shadow banning is an act of restricting or censoring a user’s content on social media without notifying the user. This usually occurs when a user posts content deemed inappropriate or it violates the platform’s guidelines. If a user is shadow banned, the user’s content is only visible to the user and their followers.

Influencers, artists, creators, and business owners are vulnerable victims to the shadow banning void. They depend the most on user engagement, growth, and reaching new audiences. As much as it hurts them, it also hurts other users searching for this specific content. There’s no clear way of telling whether you’ve been shadow banned. You don’t get a notice. You can’t make an appeal to fix your lack of engagement. However, you will see a decline in engagement because no one can see your content in their feeds.

According to the head of Instagram, Adam Mosseri, “shadow banning is not a thing.” In an interview with the Meta CEO, Mark Zuckerberg, he stated Facebook has “no policy that is shadow banning.” Even a Twitter blog stated, “People are asking us if we shadow ban. We do not.” There is no official way of knowing if it exists, but there is evidence it does take place on various social media platforms.

#Shadowbanningisacoverup?

Pole dancing on social media probably would have been deemed inappropriate 20 years ago. But this isn’t the case today. Pole dancing is a growing sport industry. Stigmas associating strippers with pole dancing is shifting with its increasing popularity and trendy nature. However, social media standards may still be stuck in the early 2000s.

In 2019, user posts with hashtags including #poledancing, #polesportorg, and #poledancenation were hidden from Instagram’s Explore page. This affected many users who connect and share new pole dancing techniques with each other. It also had a huge impact on businesses who rely on the pole community to promote their products and services: pole equipment, pole clothing, pole studios, pole sports competitions, pole photographers, and more.

Due to a drastic decrease in user engagement, a petition directing Instagram to stop pole dancing censorship was circulated worldwide. Is pole dancing so controversial it can’t be shared on social media? I think not. There is so much to learn from sharing information virtually, and Section 230 of the Communications Decency Act supports this.

Section 230 was passed in 1996, and it provides limited federal immunity to websites from lawsuits if a user posts something illegal. This means that if User X decides to post illegal content on Twitter, the Twitter platform could not be sued because of User X’s post. Section 230 does not stop the user who posted such content from being sued, so User X can still be held accountable.

It is clear that Section 230 embraces the importance of sharing knowledge. Section 230(a)(1) tells us this. So why would Instagram want to shadow ban pole dancers who are simply sharing new tricks and techniques?

The short answer is: It’s inappropriate.

But users want to know: what makes it inappropriate?

Is it the pole? A metal pole itself does not seem so.

Is it the person on the pole? Would visibility change depending on gender?

Is it the tight clothing? Well, I don’t see how it is any different from my 17 bikini photos on my personal profile.

Section 230 also provides a carve-out for sex-related work, such as sex trafficking. But this is where the line is drawn between appropriate and inappropriate content. Sex trafficking is illegal, but pole dancing is not. Instagram’s community guidelines also support this. Under the guidelines, sharing pole dancing content would not violate it. Shadow banning clearly seeks to suppress certain content, and in this case, the pole dancing community was a target.

Cultural expression also battles with shadow banning. In 2020, Instagram shadow banned Caribbean Carnival content. The Caribbean Carnival is an elaborate celebration to commemorate slavery abolition in the West Indies and showcases ensembles representing different cultures and countries.

User posts with hashtags including #stluciacarnival, #fuzionmas, and #trinidadcarnival2020 could not be found nor viewed by other users. Some people viewed this as suppressing culture and impacting tourism. Additionally, Facebook and Instagram shadow banned #sikh for almost three months. Due to numerous user feedback, the hashtag was restored, but Instagram failed to state how or why the hashtag was blocked.

In March 2020, The Intercept obtained internal TikTok documents alluding to shadow banning methods. Documents revealed moderators were to suppress content depicting users with “‘abnormal body shape,’ ‘ugly facial looks,’ dwarfism, and ‘obvious beer belly,’ ‘too many wrinkles,’ ‘eye disorders[.]'” While this is a short excerpt of the longer list, this shows how shadow banning may not be a coincidence at all.

Does shadow banning exist? What are the pros and cons of shadow banning?

DANCE DANCE LITIGATION

When the tune of the “Y.M.C.A.,” by The Village People starts to play, no matter the time or place, the urge to raise your arms and dance is impossible to ignore. A wave of nostalgia and childish-like happiness quickly fills the atmosphere, and as the chorus begins, you and (almost) everyone around you begin to dance the only way you know how: throwing your arms up in the air and forming the letters, duh! But what’s not so obvious is that the “Y.M.C.A.” dance, irrespective of its wild popularity and incorporation into major television and film productions since its release in 1978, is not copyrighted. The songwriters, artists, and producers each have and continue to receive the recognition, compensation, and title they deserve for their contributions to the song itself, but the inherent choreography remains unprotected. According to the Copyright Office (“the Office”), a dance “whereby a group of people spell out letters with their arms” is simply too basic to deserve copyright recognition because no matter how distinctive it may be, it is nonetheless a commonplace movement or gesture.

CONGRESS ‘GETS DOWN’

Choreographers, since the beginning of the entertainment industry, have never received the legal protections that producers, songwriters, and artists have. Although The Copyright Act of 1976 (the “Act”) officially recognizes choreography as a protected form of creative expression, in order to qualify as copyrightable, the choreographic work must conform to the following elements: (1) it is an original work of authorship, (2) it is an expression as opposed to an idea, and (3) it is “fixed in any tangible medium of expression. In addition, the Supreme Court has held that an individual may not bring a copyright infringement suit under the Act until the individual has registered with the Office. Although choreographic works were finally recognized as worthy or deserving of copyright recognition and status, the application of copyright laws to choreography since its recognition has revealed a significant grey area for intellectual property law.

BUT IS IT JUST A SHIMMY OR A ‘CHOREOGRAPHIC WORK’?

When assessing what qualifies as a copyrightable choreographic work, the Office acknowledges that the dividing line between what is a simple routine and what is copyrightable choreography is more of a continuum, rather than a bright line. The Office also indicated certain types of works that, from the outright, may not be copyrighted: common place movements, individual dance moves or gestures, social dances, ordinary and athletic movements, and short dance routines.

Whether a particular dance qualifies as a choreographic work, or not, ultimately rests on the Office’s assessment of the following elements collectively:

(1) rhythmic movement in a defined space

(2) compositional arrangement

(3) musical or textual accompaniment

(4) dramatic content

(5) presentation before an audience

(6) execution by skilled performers

DANCING OUR WAY TO THE COURT HOUSE

Litigation surrounding the video game Fortnite, released through Epic Games Inc., reveals just how large that grey area has grown to be. Although free to play, Fortnite’s revenue is derived from in-game purchases including purchasing a dance emote or a dance routine for the player’s avatar.

In 2019, Alfonso Ribeiro, who played the character ‘Carlton Banks’ on the TV show The Fresh Prince of Bel-Air, sought justice for Epic Games’ improper use of the Carlton as a dance emote in Fortnite but was both dismissed and rejected by the court and the Office. Following the direction of the Supreme Court, the court dismissed Mr. Ribeiro’s claim for failing to register and receive final registration of his claim with the Copyright Office. Registration is deemed to be “made” only when “the Register has registered a copyright after examining a properly filed application.” In an attempt to salvage his claim, Mr. Ribeiro proceeded to the Office but nonetheless left emptied handed. In reviewing the application, the Office refused to grant Mr. Ribeiro a copyright because the Carlton did not rise to the level of choreography since it was a simple routine made up of just three dance steps. Likewise, cases brought by rapper 2 Milly and the Backpack Kid against Epic Games alleging copyright infringement for their choreographic works the “Milly Rock,” and “the Floss” as an emote in Fortnite were also dismissed for failure to register with the Office.

So, since the cases were all dismissed for not having a valid registration with the Office, then having a valid registration with the Office is the golden ticket to defending your claim of improper infringement, right? Not quite.

Earlier this year in March, professional dance choreographer Kyle Hanagami (“Hanagami”) filed suit against Epic Games for using dance movements from the copyrighted routine used for the song “How Long” from Charlie Puth. Hanagami, unlike his predecessors above, secured a copyright for his choreographic work. Holding that golden ticket, Hanagami argued that Epic Games did not credit or seek his consent to use, display, reproduce, sell or create derivative work based on his registered choreography.

Regardless of the fact that Hanagami did secure his copyright before bringing a claim under the Act, the court yet again dismissed the case and agreed with Epic Games. The court stated that Hanagami’s steps are potentially protected only when combined with the other elements that make up his copyrighted work. Epic Games technically didn’t infringe on Hanagami’s copyright because the specific dance steps on their own were not entitled to copyright protection. When the works were evaluated as a whole, the court decided they were not substantially similar: “[w]hereas Hanagami’s video features human performers in a dance studio in the physical world performing for a YouTube audience, Epic Games’ work features animated characters performing for an in-game audience in a virtual world.”

And as if the grey couldn’t get any grey-er….it indeed does.

DANCING IN CIRCLES, YET AGAIN

The outcome of all this dance-litigation eludes to the central need for choreography, on its own, to be recognized and protected as a separate work. Although securing a copyright to a choreographic work will get you in the door to the courthouse, there’s no guarantee that what you’ve copyrighted will actually be protected. Thus, it is crucial that the plight of choreographers be truly recognized. Inconsistent outcomes and unclear guidelines continue to aggravate the underlying issue of allowing choreographers to pursue the copyright protection they deserve for their works. Copyrighting successful dance routines is to further help ensure dancers’ and their ability to monetize and profit from their work, but the murky waters that prevent registration and the unpredictability of outcomes in court will remain as barriers until we can clear the grey area.

Alls fair in Love and Romance Scams

In 2014, 81-year-old Glenda thought she had met the love of her life. The problem? Their entire relationship was virtual. The individual on the other end of Glenda’s computer sold her a fictional narrative that he was a United States citizen working in Nigeria. Glenda and this man developed their virtual “relationship”, never meeting in person. After some time, this man would ask Glenda for money to help his business and to get back to the United States. Glenda, wanting to help her love, immediately sent over the money. The requests became more frequent. When the small money transfers weren’t enough, he asked her to open personal and business bank accounts to transfer funds between the United States and overseas.

Despite numerous warnings from the FBI, local police, and banks to stop, Glenda still believed the man she met online loved her and needed help. She continued illegally transferring money overseas for the next 5 years and would eventually plead guilty to two federal felonies. Glenda was a victim of a Romance Scam and paid the ultimate price.

Unfortunately, Glenda’s situation, while extreme, is far from a rare occurrence today. In 2021 alone, the Federal Trade Commission (FTC) saw consumers report $547 million in losses due to romance scams, a concerning 80% more than those reported in 2020. In total, the FTC has seen an astronomical $1.3 billion in cumulative romance scam losses reported in the last five years. And these are just the scams that were reported to the FTC. Many victims go without reporting due to the shame and stigma that comes with falling prey to an online scam.

Romance scams often referred to as “sweetheart scams” occur when an individual (or group of individuals) fabricates an online persona and targets vulnerable persons for money.

These scammers build a fake relationship with the victim through messages and build empathy and trust over a short amount of time. After the relationship is built, the scammer suddenly succumbs to financial and/or medical hardships. Their initial request for money is typically a small amount and the victim may be repaid the first time to negate any doubts that this is a scam; after the second, third, and fourth request, the victim is likely never see their funds (or their “love”) again.

The elderly population is especially vulnerable to online scams. Seniors tend to be more trusting than younger generations and usually have significant financial savings (own their home, retirement savings, government benefits). Also due to cognitive decline and unfamiliarity with technology, this group is left at a disadvantage to defend themselves or recognize when someone is feigning friendship versus a genuine connection. Even more so in recent years due to COVID-19, the elderly have become even more vulnerable. Many were forced into isolation and could only stay in contact with family and loved ones by getting internet devices, opening up a whole new world. Unmonitored access to the internet coupled with increased loneliness made elders the perfect target for romance scams.

Are dating sites liable for promoting fraudsters to unsuspecting victims? The short answer is no.

Under 47 USC Section 230, interactive computer service providers (a.k.a. social media and dating sites) are immune from liability for claims arising out of the content that third parties publish to their sites.

In 2022, the Federal Trade Commission’s claims against Match Group Inc. (owner and operator of Match.com, Tinder, PlentyofFish, OkCupid, Hinge, and several other dating sites) asserting that:

Match.com misrepresented to consumers that profiles were interested in “establishing a dating relationship”, but on numerous instances, these profiles were set up by individuals with the intent to defraud; and
Match “exposed to consumers to the risk of fraud” by allowing accounts that were reported or flagged for fraud and under review to still exchange communication with other subscribers.

The Texas Northern District Court dismissed both counts, holding that under Section 230, Match was entitled to immunity from a third party’s fraudulent content and actions. It seems that if a victim is looking for recovery, they won’t find it in the courts or through the dating sites themselves.

This looks like a job for the FBI…

Or maybe not.

The Federal Bureau of Investigation engages its Internet Crime Complaint Center (IC3), Recovery Asset Team (RAT) and Financial Crimes Enforcement Network (FinCEN) to recover monetary losses from internet scams. Unfortunately, the FBI typically takes on international cases of single transfers over $50,000 that fall within a 72-hour reporting window. Most romance scammers typically request money from elderly victims in smaller amounts over an extended period (the median loss for romance fraud victims in their 70s is $6,450). Due to this high threshold and short reporting window, a majority of romance scam victims never report their losses or see their money again.

In reality…YOU Are Your Best Defense.

Prevent

Do not send money to someone you have never met in person.

Advocate

Check in on your loved ones who are living alone. They may be less inclined to turn to virtual relationships and send money if they have real-life connections.

Check with banks and financial institutions about regular check-in schedules for elderly clients or talk with your loved ones to help monitor their accounts if you notice they are in a cognitive decline.

Report

If you or your loved one have been a victim of a romance scam, contact 1) your financial institution immediately; 2) report the fraud to the dating site to try and shut down the fraudster’s account; and 3) report the fraud to the Federal Trade Commission.

#ad : The Rise of Social Media Influencer Marketing

#Ad : The rise of social media influence marketing.

When was the last time you bought something from a billboard or a newspaper? Probably not recently. Instead, advertisers are now spending their money on digital market platforms. And at the pinnacle of these marketing platforms are influencers. Since millennial, generation Y, and generation Z consumers spend so much time consuming user-generated content, the creator begins to become their acquaintance and could even be categorized as a friend. Once that happens, the influencer has more power to do what their name suggests and influence the user to purchase. This is where our current e-commerce market is headed.

Imagine this:

If a person you know and trust suggests you try a brand new product, you would probably try it. Now, if that same person were to divulge to you that they were paid to tell you all about how wonderful this product is, you would probably have some questions about the reality of their love for this product, right?

Lucky for us consumers, the Federal Trade Commission (FTC) has established an Endorsement Guide so we can all have that information when we are being advertised to by our favorite social media influencers.

The times have changed, quickly.

Over the past 8 years, there has been a resounding shift in the way companies market their products, to the younger generation specifically. The unprecedented changes throughout the physical and digital marketplace have forced brands to think thoroughly through their strategies on how to reach the desired consumer. Businesses are now forced to rely on digital and social media marketing more than they ever have before.

With the rise of social media and apps like Vine, and Tik Tok, came a new metaverse with almost untapped potential for marketing. This was the way companies would be able to reach this younger generation of consumers, you know, the ones with their heads craned over a phone and their thumbs constantly scrolling. These were the people that advertisers had trouble reaching, until now.

What the heck is an “ Influencer”?

The question “What is an influencer?” has become standard in conversations among social media users. We know who they are, but the term is very loosely defined. Rachel David, a popular, YouTube personality, defined it with the least ambiguity as “Someone like you and me, except they chose to consistently post stuff online”. This definition seems harmless enough until you understand that it is much more nuanced than that and these individuals are being paid huge sums of money to push products that they most likely don’t use themselves, despite what their posts may say. The reign of celebrity-endorsed marketing is shifting to a new form of celebrity called an “Influencer”. High-profile celebrities were too far removed from the average consumer. A new category emerged with the rise of social media use, and the only difference between a celebrity and a famous influencer is…relatability. Consumers could now see themselves in the influencer and would default to trusting them and their opinion.

One of the first instances we saw influencers flexing their advertising muscle was the popular app Vine .Vine was a revolutionary app and frankly existed before its time. It introduced the user to a virtual experience that matched their dwindling attention span. Clips were no more than 6 seconds long and would repeat indefinitely until the user swiped to the next one. This short clip captured the user’s attention and provided that much-needed dopamine hit. This unique platform began rising in popularity, rivaling other apps like the powerhouse of user engagement, YouTube. Unlike YouTube, however, Vine required less work on the shorter videos, and more short videos were produced by the creator. Since the videos were so short, the consumers wanted more and more videos (content), which opened the door for other users to blast their content, creating an explosion of “Vine Famous” creators. Casual creators were now, almost overnight, amassing millions of followers, followers they can now influence. Vine failed to capitalize on its users and its inability to monetize on its success, it ultimately went under in 2016. But, what happened to all of those influencers? They made their way to alternate platforms like YouTube, Instagram, and Facebook taking with them their followers and subsequently their influencer status. These popular influencers went from being complete strangers to people the users inherently trusted because of the perceived transparency into their daily life.

Here come the #ads.

Digital marketing was not introduced by Vine, but putting a friendly influencer face behind the product has some genesis there. Consumerism changed when social media traffic increased. E-commerce rose categorically when the products were right in front of the consumer’s face, even embedded into the content they were viewing. Users were watching advertisements and didn’t even care. YouTube channels that were dedicated solely to reviewing different products and giving them a rating became an incredibly popular genre of video. Advertisers saw content becoming promotion for a product and the shift from traditional marketing strategies took off. Digital, inter-content advertising was the new way to reach this generation.

Now that influencer marketing is a mainstream form of marketing, the prevalence of the FTC Endorsement Guide has amplified. Creators are required to be transparent about their intentions in marketing a product. The FTC guide suggests ways influencers can effectively market the product they are endorsing while remaining transparent about their motivations to the user. The FTC guide provides examples of how and when to disclose the fact that a creator is sponsoring or endorsing a particular product that must be followed to avoid costly penalties. Most users prefer to have their content remain as “on brand” as possible and will resort to the most surreptitious option and choose to disguise the “#ad” within a litany of other relevant hashtags.

The age of advertising has certainly changed right in front of our eyes, literally. As long as influencers remain transparent about their involvement with the products they show in their content, consumers will inherently trust them and their opinion on the product. So sit back, relax, and enjoy your scrolling. But, always be cognizant that your friendly neighborhood influencer may have monetary motivation behind their most recent post.

Jonesing For New Regulations of Internet Speech

From claims that the moon landing was faked to Area 51, the United States loves its conspiracy theories. In fact, a study sponsored by the University of Chicago found that more than half of Americans believe at least one conspiracy theory. While this is not a new phenomenon, the increasing use and reliance on social media has allowed misinformation and harmful ideas to spread with a level of ease that wasn’t possible even twenty years ago.

Individuals with a large platform can express an opinion that creates a harm to the people that are personally implicated in the ‘information’ being spread. Presently, a plaintiff’s best option to challenge harmful speech is through a claim for defamation. The inherent problem is that opinions are protected by the First Amendment and, thus, not actionable as defamation.

This leaves injured plaintiffs limited in their available remedies because statements in the context of the internet are more likely to be seen as an opinion. The internet has created a gap where we have injured plaintiffs and no available remedy. With this brave new world of communication, interaction, and the spread of information by anyone with a platform comes a need to ensure that injuries sustained by this speech will have legal recourse.

Recently, Alex Jones lost a defamation claim and was ordered to pay $965 million to the families of the Sandy Hook victims after claiming that the Sandy Hook shooting that occurred in 2012 was a “hoax.” Despite prevailing at trial, the statements that were the subject of the suit do not fit neatly into the well-established law of defamation, which makes reversal on appeal likely.

The elements of defamation require that the defendant publish a false statement purporting it to be true, which results in some harm to the plaintiff. However, just because a statement is false does not mean that the plaintiff can prove defamation because, as the Supreme Court has recognized, false statements still receive certain First Amendment protections. In Milkovich v. Lorain Journal Co., the Court held that “imaginative expression” and “loose, figurative, or hyperbolic language” is protected by the First Amendment.

The characterization of something as a “hoax” has been held by courts to fall into this category of protected speech. In Montgomery v. Risen, a software developer brought a defamation action against an author who made a statement claiming that plaintiff’s software was a “hoax.” The D.C. Circuit held that characterization of something as an “elaborate and dangerous hoax” is hyperbolic speech, which creates no basis for liability. This holding was mirrored by several courts including the District Court of Kansas in Yeagar v. National Public Radio, the District Court of Utah in Nunes v. Rushton, and the Superior Court of Delaware in Owens v. Lead Stories, LLC.

The other statements made by Alex Jones regarding Sandy Hook are also hyperbolic language. These statements include: “[i]t’s as phony as a $3 bill”, “I watched the footage, it looks like a drill”, and “my gut is… this is staged. And you know I’ve been saying the last few months, get ready for big mass shootings, and then magically, it happens.” While these statements are offensive and cruel to the suffering families, it is really difficult to characterize them as something objectively claimed to be true. ‘Phony’, ‘my gut is’, ‘looks like’, and ‘magically’ are qualifying the statement he is making as a subjective opinion based on his interpretation of the events that took place.

It is indisputable that the statements Alex Jones made caused harm to these families. They have been subjected to harassment, online abuse, and death threats from his followers. However, no matter how harmful these statements are, that does not make it defamation. Despite this, a reasonable jury was so appalled by this conduct that they found for the plaintiffs. This is essentially reverse jury nullification. They decided that Jones was culpable and should be held legally responsible even if there is no adequate basis for liability.

The jury’s determination demonstrates that current legal remedies are inadequate to regulate potentially harmful speech that can spread like wildfire on the internet. The influence that a person like Alex Jones has over his followers establishes a need for new or updated laws that hold public figures to a higher standard even when they are expressing their opinion.

A possible starting point for regulating harmful internet speech at a federal level might be through the commerce clause, which allows Congress to regulate instrumentalities of commerce. The internet, by its design, is an instrumentality of interstate commerce by enabling for the communication of ideas across state lines.

Further, the Federal Anti-Riot Act, which was passed in 1968 to suppress civil rights protestors might be an existing law that can serve this purpose. This law makes it a felony to use a facility of interstate commerce to (1) incite a riot; or (1) to organize, promote, encourage, participate in, or carry on a riot. Further, the act defines riot as:

[A] public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

Under this definition, we might have a basis for holding Alex Jones accountable for organizing, promoting, or encouraging a riot through a facility (the internet) of interstate commerce. The acts of his followers in harassing the families of the Sandy Hook victims might constitute a public disturbance within this definition because it “result[ed] in, damage or injury… to the person.” While this demonstrates one potential avenue of regulating harmful internet speech, new laws might also need to be drafted to meet the evolving function of social media.

In the era of the internet, public figures have an unprecedented ability to spread misinformation and incite lawlessness. This is true even if their statements would typically constitute an opinion because the internet makes it easier for groups to form that can act on these ideas. Thus, in this internet age, it is crucial that we develop a means to regulate the spread of misinformation that has the potential to harm individual people and the general public.

Corporate Use of Social Media: A Fine Line Between What Could-, Would-, and Should-be Posted

Introduction

In recent years, social media has taken a hold on nearly every aspect of human interaction and turned the way we communicate on its head. Social media apps’ high speed capability of disseminating information instantaneously have affected the way many sectors of business operate. From entertainment, social, environmental, educational, or financial, social media has bewildered the legal departments of many in house general counsels across all industries. Additionally, the generational shaft between the person actually posting for the account versus their supervisor has only exacerbated the potential for communications to miss their mark and cause controversy or adverse effects.

These days, most companies have social media accounts, but not all accounts are created equal, and they certainly are not all monitored the same. In most cases, these accounts are not regulated at all except by their own internal managers and #CancelCulture. Depending on the product or company, social media managers have done their best to stay abreast of changes in popular hashtags, trends and challenges, and the overall shift from a corporate tone of voice to one of relatability–more Gen-Z-esque, if you will. But with this shift, the rights and implications of corporate speech through social media has been put to the test.

Changes in Corporate Speech on Social Media

In the last 20 years, corporate use of social media has become a battle of relevance. With the decline of print media, social media, and its apps, have emerged as a marketing necessity. Early social media use was predominantly geared towards social purposes. If we look at the origins of Facebook, Myspace, and Twitter it is clear that these apps were intended for superficial uses—not corporate communications—but this all changed with the introduction of LinkedIn, which sparked a dynamic shift towards business and professional use of social media.

Today social media is used to report on almost every aspect of our lives, from disaster preparation and emergency responses to political updates, to dating and relationship finders, and customer service based tasks, social media truly covers all. It is also more common now days to get backlash for not speaking out or using social media after a major social or political movement occurs. Social media is also increasingly being used for research with geolocation technology, for organizing demonstrations and political unrest, and in the business context, for development in sales, marketing, networking, and hiring or recruiting practices.

These changes are starting to lead to significant conversations in the business world when it comes to company speech, regulated disclosures and First Amendment rights. For example, so far, there is minimal research on how financial firms disseminate communications to investor news outlets via social media and in which format they are being responded to. And while some may view social media as an opportunity to further this kind of investor outreach, others have expressed concerns that disseminating communications in this manner could result in a company’s loss of control over such communications entirely.

The viral nature of social media allows not just investors to connect more easily with companies but also with individuals who may not directly follow that company and would therefore be a lot less likely to be informed about a company’s prior financial communications and the importance of any changes. This creates risk for a company’s investor communications via social media because of the potential to spread and possibly reach uniformed individuals which could in turn produce adverse consequences for the company when it comes to concerns about reliance and misleading information.

Corporate Use, Regulations, and Topics of Interest on Social Media

With the rise of social media coverage on various societal issues, these apps have become a platform for news coverage, political movements, and social concerns and, for some generations, a platform that replaces traditional news media almost entirely. Specifically, when it comes to the growing interest in ESG related matters and sustainable business practices, social media poses as a great tool for information communication. For example, the Spanish company Acciona has recently been reported by the latest Epsilon Icarus Analytics Panel on ESG Sustainability, as having Spain’s highest resonating ESG content of all their social networks. Acciona demonstrates the potential leadership capabilities for a company to fundamentally impact and effectuate digital communications on ESG related topics. This developing content strategy focuses on brand values, and specifically, for Acciona, strong climate-change based values, female leadership, diversity, and other cultural, societal changes which demonstrates this new age of social media as a business marketing necessity.

Consequentially, this shift in usage of social media and the way we treat corporate speech on these platforms has left room for emerging regulation. Commercial or corporate speech is generally permissible under Constitutional Free Speech rights, so long as the corporation is not making false or misleading statements. Section 230 provides broad protection to internet content providers from accountability based on information disseminated on their platform. In most contexts, social media platforms will not be held accountable for the consequences resulting therefrom (i.e. a bad user’s speech). For example, a recent lawsuit was dismissed in favor of the defendant, TikTok, and its parent company, after a young girl died from participation in a trending challenge that went awry because under § 230 the platform was immune from liability.

In essence, when it comes to ESG-related topics, the way a company handles its social media and the actual posts they put out can greatly affect the company’s success and reputation as often ESG focused perspectives affect many aspects of the operation of the business. The type of communication, and coverage on various issues, can impact a company’s performance in the short term and long term hemispheres–the capability of which can effectuate change in corporate environmental practices, governance, labor and employment standards, human resource management and more.

With ESG trending, investors, shareholders, and regulators now face serious risk management concerns. Companies must now, more publicly, address news concerning their social responsibilities, on a much more frequent basis as ESG concerns continue to rise. Public company activities, through Consumer Service Reports, are mandated in annual 10-K filings and disclosures by the SEC, along with ESG disclosures thanks to a recent rule promulgation. These disclosures are designed to hold accountable and improve environmental, social, and economic performance when it comes to their respective stakeholders’ expectations.

Conclusion

In conclusion, social media platforms have created an entirely new mechanism for corporate speech to be implicated. Companies should proceed cautiously when covering social, political, environmental, and related concerns and their methods of information dissemination as well as the possible effects their posts may have on business performance and reputation overall.

Miracles Can Be Misleading

Want to lose 20 pounds in 4 days? Try this *insert any miracle weight-loss product * and you’ll be skinny in no time!

Miracle weight-loss products (MWLP) are dietary supplements that either work as an appetite suppressant or forcefully induce weight loss. These products are not approved or indicated by pharmaceutical agencies as weight loss prophylactics. Social media users are continuously bombarded with the newest weight-loss products via targeted advertisements and endorsements from their favorite influencers. Users are force fed false promises of achieving the picture-perfect body while companies are profiting off their delusions. Influencer marketing has increased significantly as social media becomes more and more prevalent. 86 percent of women use social media for purchasing advice. 70 percent of teens trust influencers more than traditional celebrities. If you’re on social media, then you’ve seen your favorite influencer endorsing some form of a MWLP and you probably thought to yourself “well if Kylie Jenner is using it, it must be legit.”

The advertisements of MWLP are promoting an unrealistic and oversexualized body image. This trend of selling skinny has detrimental consequences, often leading to body image issues, such as body dysmorphia and various eating disorders. In 2011, the Florida House Experience conducted a study among 1,000 men and women. The study revealed that 87 percent of women and 65 percent of men compare their bodies to those they see on social media. From the 1,000 subjects, 50 percent of the women and 37 percent of the men viewed their bodies unfavorably when compared to those they saw on social media. In 2019, Project Know, a nonprofit organization that studies addictive behaviors, conducted a study which suggested that social media can worsen genetic and psychological predispositions to eating disorders.

Who Is In Charge?

The collateral damages that advertisements of MWLP have on a social media user’s body image is a societal concern. As the world becomes more digital, even more creators of MWLP are going to rely on influencers to generate revenue for their products, but who is in charge of monitoring the truthfulness of these advertisements?

In the United States, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) are the two federal regulators responsible for promulgating regulations relating to dietary supplements and other MWLP. While the FDA is responsible for the labeling of supplements, they lack jurisdiction over advertising. Therefore, the FTC is primarily responsible for advertisements that promote supplements and over-the-counter drugs.

The FTC regulates MWLP advertising through the Federal Trade Commission Act of 1914 (the Act). Sections 5 and 12 of the Act collectively prohibit “false advertising” and “deceptive acts or practices” in the marketing and sales of consumer products, and grants authority to the FTC to take action against those companies. An advertisement is in violation of the Act when it is false, misleading, or unsubstantiated. An advertisement is false or misleading when it contains “objective, material representation that is likely to deceive consumers acting reasonably under the circumstances.” An advertisement is unsubstantiated when it lacks “a reasonable basis for its contained representation.” With the rise of influencer marketing, the Act also requires influencers to clearly disclose when they have a financial or other relationship with the product they are promoting.

Under the Act, the FTC has taken action against companies that falsely advertise MWLP. The FTC typically brings enforcement claims against companies by alleging that the advertiser’s claims lack substantiation. To determine the specific level and type of substantiation required, the FTC considers what is known as the “Pfizer factors” established In re Pfizer. These factors include:

- The type and specificity of the claim made.
- The type of product.
- The possible consequences of a false claim.
- The degree of reliance by consumers on the claims.
- The type, and accessibility, of evidence adequate to form a reasonable basis for making the particular claims.

In 2014, the FTC applied the Pfizer factors when they brought an enforcement action seeking a permanent injunction against Sensa Products, LLC. Since 2008, Sensa sold a powder weight loss product that allegedly could make an individual lose 30 pounds in six months without dieting or exercise. The company advertised their product via print, radio, endorsements, and online ads. The FTC claimed that Sensa’s marketing techniques were false and deceptive because they lacked evidence to support their health claims, i.e., losing 30 pounds in six months. Furthermore, the FTC additionally claimed that Sensa violated the Act by failing to disclose that their endorsers were given financial incentives for their customer testimonials. Ultimately, Sensa settled, and the FTC was granted the permanent injunction.

What Else Can We Do?

Currently, the FTC, utilizing its authority under the Act, is the main legal recourse for removing these deceitful advertisements from social media. Unfortunately, social media platforms, such as Facebook, Twitter, Instagram, etc., cannot be liable for the post of other users. Under section 230 of the Communications Decency Act, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That means, social media platforms cannot be held responsible for the misleading advertisements of MWLP; regardless of if the advertisement is through an influencer or the companies own social media page and regardless of the collateral consequences that these advertisements create.

However, there are other courses of action that social media users and social media platforms have taken to prevent these advertisements from poisoning the body images of users. Many social media influencers and celebrities have rose to the occasion to have MWLP advertisements removed. In fact, in 2018, Jameela Jamil, an actress starring on The Good Place, launched an Instagram account called I Weigh which “encourages women to feel and look beyond the flesh on their bones.” Influencer activism has led to Instagram and Facebook blocking users, under the age of 18, from viewing posts advertising certain weight loss products or other cosmetic procedures. While these are small steps in the right direction, more work certainly needs to be done.

The #Trademarkability of #Hashtags

The #hashtag is an important marketing tool that has revolutionized how companies conduct business. Essentially, hashtags serve to identify or facilitate a search for a keyword or topic of interest by typing a pound sign (#) along with a word or phrase (e.g., #OOTD or #Kony2012). Placing a hashtag at the beginning of a word or phrase on Twitter, Instagram, Facebook, TikTok, etc., turns the word or phrase into a hyperlink attaching it to other related posts, thus driving traffic to users’ sites. This is a great way to promote a product, service or campaign while simultaneously reducing marketing costs and increasing brand loyalty, customer engagement, and, of course, sales. But with the rise of this digital “sharing” tool comes a new wave of intellectual property challenges. Over the years, there has been increasing interest in including the hashtag in trademark applications.

#ToRegisterOrNotToRegister

According to the United States Patent and Trademark Office (USPTO), a term containing the hash symbol or the word “hashtag” MAY be registered as a trademark. The USPTO recognizes hashtags as registrable trademarks “only if [the mark] functions as an identifier of the source of the applicant’s goods or services.” Additionally, Section 1202.18 of the Trademark Manual of Examining Procedure (TMEP) further explains that “when examining a proposed mark containing the hash symbol, careful consideration should be given to the overall context of the mark, the placement of the hash symbol in the mark, the identified goods and services, and the specimen of use, if available. If the hash symbol immediately precedes numbers in a mark, or is used merely as the pound or number symbol in a mark, such marks should not necessarily be construed as hashtag marks. This determination should be made on a case-by-case basis.”

Like other forms of trademarks, one would seek registration of a hashtag in order to exclude others from using the mark when selling or offering the goods or services listed in the registration. More importantly, the existence of the trademark would serve in protecting against consumer confusion. This is the same standard that is applied to other words, phrases, or symbols that are seeking trademark registration. The threshold question when considering whether to file a trademark application for a hashtag is whether the hashtag is a source identifier for goods or services, or whether it merely describes a particular topic, movement, or idea.

#BarsToRegistration

Merely affixing a hashtag to a mark does not automatically make it registerable. For example, in 2019, the Trademark Trial and Appeal Board (TTAB) denied trademark registration for #MAGICNUMBER108 because it did not function as a trademark for shirts and is therefore not a source identifier. Rather, the TTAB found that the social media evidence suggests that the public sees the hashtag as a “widely used message to convey information about the Chicago Cubs baseball team”, namely, their 2016 World Series win after a 108-year drought. The TTAB went on to say that just because the mark is unique doesn’t mean that the public would perceive it is an indication of a source. This further demonstrates the importance of a goods- source association of the mark.

Hashtags that would not function as trademarks are those simply relating to certain topics that are not associated with any goods or services. So, for example, cooking: #dinnersfortwo, #mealprep, or #healthylunches. These hashtags would likely be searched by users to find information relating to cooking or recipe ideas. When encountering these hashtags on social media, users would probably not link them to a specific brand or product. On the contrary, hashtags like #TheSaladLab or #ChefCuso would likely be linked to specific social media influencers who use that mark in connection with their goods and services and as such, could function as a trademark. Other examples of hashtags that would likely function as trademarks are brands themselves (#sephora, #prada, or #nike). Even slogans for popular brands would suffice (#justdoit, #americarunsondunkin, or #snapcracklepop).

#Infringement

What makes trademarked hashtags unique from other forms of trademarked material is that hashtags actually serve a purpose other than just identifying the source of the goods- they are used to index key words on social media to allow users to follow topics they are interested in. So, does that mean that using a trademarked hashtag in your social media post will create a cause of action for trademark infringement? The answer to this question is every lawyer’s favorite response: it depends. Sticking with the example above, assuming #TheSaladLab is a registered trademark, referencing the tag in this blog post alone would likely not warrant a trademark infringement claim, but if I were to sell kitchen tools or recipe books with the tag #TheSaladLab, that might rise to the level of infringement. However, courts are still unclear about the enforceability of hashtagged marks. In 2013, a Mississippi District Court stated in an order that “hashtagging a competitor’s name or product in social media posts could, in certain circumstances, deceive consumers.” The court never actually made a ruling on whether the use of the hashtag was actually infringing the registered mark.

This is problematic because on one hand, regardless of whether there is a hashtag in front of the mark, the owner of a registered trademark is entitled to bring a cause of action for trademark infringement when someone else uses their mark in commerce without their permission in the same industry. On the other hand, when one uses a trademark with the “#” symbol in front of it for the purposes of sharing information on social media, they are simply complying with the norms of the internet. The goal is to strike a balance between protecting the rights of IP owners and also protecting the rights of users’ freedom of expression on social media.

While the courts are somewhat behind in dealing with infringement relating to hashtagged trademark material, for the time being, various social media platforms (Instagram, Facebook, Twitter, YouTube) have procedures in place that allow users to report misuse of trademark-protected material or other intellectual property-related concerns.

Month: October 2022