Author: Grace Magrino

Sharing is NOT Always Caring

Where There’s Good, There’s Bad

Social media’s vast growth over the past several years has attracted millions of users who use these platforms to share content, connect with others, conduct business, and spread news and information. However, social media is a double-edged sword. While it creates communities of people and bands them together, it destroys privacy in the meantime. All of the convenient aspects of social media that we know and love lead to significant exposure of personal information and related privacy risks. Social media companies retain massive amounts of sensitive information regarding users’ online behavior, including their interests, daily activities, and political views. Algorithms are embedded within these functions to promote specific goals of social media companies, such as user engagement and targeted advertising. As a result, the means to achieve these goals conflict with consumers’ privacy concerns.

Common Issues

In 2022, several U.S. state and federal agencies banned their employees from using TikTok on government-subsidized devices, fearful that foreign governments could acquire confidential information. While a lot of the information collected through these platforms is voluntarily shared by users, much of it is also tracked using “cookies,” and you can’t have these with a glass of milk! Tracking cookies allows information regarding users’ online browsing activity to be stored and displayed in a way that targets specific interests and personalizes content tailored to these particular likings. Signing up for a social account and agreeing to the platform’s terms permits companies to collect all of this data.

Social media users leave a “digital footprint” on the internet when they create and use their accounts. Unfortunately, enabling a “private” account does not solve the problem because data is still retrieved in other ways. For example, engagement in certain posts through likes, shares, comments, buying history, and status updates all increase the likelihood that privacy will be intruded on.

Two of the most notorious issues related to privacy on social media are data breaches and data mining. Data breaches occur when individuals with unauthorized access steal private or confidential information from a network or computer system. Data mining on social media is the process in which user information is analyzed to identify specific tendencies which are subsequently used to inform research and other advertising functions.

Other issues that affect privacy are certain loopholes that can be taken around preventive measures already in place. For example, if an individual maintains a private social account but then shares something with their friend, others who are connected with the friend can view the post. Moreover, location settings enable a person’s location to be known even if the setting is turned off. Other means, such as Public Wi-Fi and websites can still track users’ locations.

Taking into account all of these prevailing issues, only a small amount of information is actually protected under federal law. Financial and healthcare transactions as well as details regarding children are among the classes of information that receive heightened protection. Most other data that is gathered through social media can be collected, stored, and used. Social media platforms are unregulated to a great degree with respect to data privacy and consumer data protection. The United States does have a few laws in place to safeguard privacy on social media but more stringent ones exist abroad.

Social media platforms are required to implement certain procedures to comply with privacy laws. They include obtaining user consent, data protection and security, user rights and transparency, and data breach notifications. Social media platforms typically ask their users to agree to their Terms and Conditions to obtain consent and authorization for processing personal data. However, most are guilty of accepting without actually reading these terms so that they can quickly get to using the app.

Share & Beware: The Law

Privacy laws are put in place to regulate how social media companies can act on all of the information users share, or don’t share. These laws aim to ensure that users’ privacy rights are protected.

There are two prominent social media laws in the United States. The first is the Communications Decency Act (CDA) which regulates indecency that occurs through computer networks. Nevertheless, Section 230 of the CDA provides enhanced immunity to any cause of action that would make internet providers, including social media platforms, legally liable for information posted by other users. Therefore, accountability for common issues on social media like data breaches and data misuse is limited under the CDA. The second is the Children’s Online Privacy Protection Act (COPPA). COPPA protects privacy on websites and other online services for children under the age of thirteen. The law prevents social media sites from gathering personal information without first providing written notice of disclosure practices and obtaining parental consent. The challenge remains in actually knowing whether a user is underage because it’s so easy to misrepresent oneself when signing up for an account. On the other hand, the European Union has General Data Protection Regulation (GDPR) which grants users certain control over when and how their data is processed. The GDPR contains a set of guidelines that restrict personal data from being disseminated on social media platforms. In the same way, it also gives internet users a long set of rights in cases where their data is shared and processed. Some of these rights include the ability to withdraw consent that was previously given, access information that is collected from them, and delete or restrict personal data in certain situations. The most similar domestic law to the GDPR is the California Consumer Privacy Act (CCPA) which was enacted in 2020. The CCPA regulates what kind of information can be collected by social media companies, giving platforms like Google and Facebook much less freedom in harvesting user data. The goal of the CCPA is to make data collection transparent and understandable to users.

Laws on the state level are lacking and many lawsuits have occurred as a result of this deficiency. A class action lawsuit was brought in response to the collection of users’ information by Nick.com. These users were all children under the age of thirteen who sued Viacom and Google for violating privacy laws. They argued that the data collected by the website together with Google’s stored data relative to its users was personally identifiable information. A separate lawsuit was brought against Facebook for tracking users when they visited third-party websites. Individuals who brought suit claimed that Facebook was able to personally identify and track them through shares and likes when they visited certain healthcare websites. Facebook was able to collect sensitive healthcare information as users browsed these sites, without their consent. However, the court asserted that users did indeed consent to these actions when they agreed to Facebook’s data tracking and data collection policies. The court also stated that the nature of this data was not subject to any stricter requirements as plaintiffs claimed it was because it was all available on publicly accessible websites. In other words, public information is fair game for Facebook and many other social media platforms when it comes to third-party sites.

In contrast to these two failed lawsuits, TikTok agreed to pay a $92 million settlement for twenty-one combined lawsuits due to privacy violations earlier this year. The lawsuit included substantial claims, such as allegations that the app analyzed users’ faces and collected private data on users’ devices without obtaining their permission.

We are living in a new social media era, one that is so advanced that it is difficult to fully comprehend. With that being said, data privacy is a major concern for users who spend a large amount of time sharing personal information, whether they realize it or not. Laws are put in place to regulate content and protect users, however, keeping up with the growing presence of social media is not an easy task–sharing is inevitable and so are privacy risks.

To share or not to share? That is the question. Will you think twice before using social media?

When in Doubt, DISCLOSE it Out!

The sweeping transformation of social media platforms over the past several years has given rise to convenient and cost-effective advertising. Advertisers are now able to market their products or services to consumers (i.e. users) at low cost, right at their fingertips…literally! But convenience comes with a few simple and easy rules. Influencers, such as, athletes, celebrities, and high-profile individuals are trusted by their followers to remain transparent. Doing so does not require anything difficult. In fact, including “Ad” or “#Ad” at the beginning of a post is satisfactory. The question then becomes, who’s making these rules?

The Federal Trade Commission (FTC) works to stop deceptive or misleading advertising and provides guidance on how to go about doing so. Under the FTC, individuals have a legal obligation to clearly and conspicuously disclose their material connection to the products, services, brands, and/or companies they promote on their feeds. The FTC highlights one objective component to help users identify an endorsement. That is, a statement made by the speaker where their relationship with the advertiser is such that the speaker’s statement can be understood to be sponsored by the advertiser. In other words, if the speaker is acting on behalf of the advertiser, then that statement will be taken as an endorsement and subject to guidelines. Several factors will determine this, such as compensation, free products, and the terms of any agreement. Two basic principles of advertising law apply to all types of advertising in any media. They include 1) a reasonable basis to evidence claims and 2) clear and conspicuous disclosure. Overall, the FTC works to ensure transparent sponsorship in an effort to maintain consumer trust.

The Breakdown—When, How, & What Else

Influencers should disclose when they have a financial, employment, personal, or family relationship with a brand. Financial relationships do not have to be limited to money. If for example, a brand gives you a free product, disclosure is required even if you were not asked to mention it in a post. Similarly, if a user posts from abroad, U.S. law still applies if it is reasonably foreseeable that U.S. consumers will be affected.

When disclosing your material connection to the brand, make sure that disclosure is easy to see and understand. The FTC has previously disapproved of disclosure in places that are remote from the post itself. For instance, users should not have to press “show more” in the comments section to see that the post is actually an endorsement.

Another important aspect advertisers and endorsers should consider when disclosing are making sure not to talk about items they have not yet tried. They should also avoid saying that a product was great when they in fact thought it was not. In addition, individuals should not convey information or produce claims that are unsupported by actual evidence.

However, not everyone who posts about a brand needs to disclose. If you want to post a Sephora haul or a Crumbl Cookie review, that is okay! As long as a company is not giving you products for free or paying you to sponsor them, individuals are free to post at their leisure, without disclosing.

Now that you realize how seamless disclosure is, it may be surprising that people still fail to do so.

Rule Breakers

In Spring 2020 we saw an uptick of social media posts due to the fact that most people abided by stay-at-home orders and turned to social media for entertainment. TikTok is deemed particularly addictive, with users spending substantially more time on it over other apps, such as Instagram and Twitter.

TikTok star Charlie D’Amelio spoke positively about the enhancement drink, Muse in a Q&A post. She never acknowledged that the brand was paying her to sponsor their product and failed to use the platform’s content enabling tool which makes it even easier for users to disclose. D’Amelio is the second most followed account on the platform.

The Teami brand found itself in a similar position when stars like Cardi B and Brittany Renner made unfounded claims that the wellness company made products that resulted in unrealistic health benefits. The FTC instituted a complaint alleging that the company misled consumers to think that their 30-day detox pack would ensure weight loss. A subsequent court order prohibited them from making such unsubstantiated claims.

Still, these influencers hardly got punished, but received a mere ‘slap on the wrist’ for making inadequate disclosures. They were ultimately sent warning letters and received some bad press.

Challenges in Regulation & Recourse

Section 5(a) of the FTC Act is the statute that allows the agency to investigate and prevent unfair methods of competition. It is what gives them the authority to seek relief for consumers. This includes injunctions and restitution and in some cases, civil penalties. However, regulation is challenging because noncompliance is so easy. While endorsers have the ultimate responsibility to disclose their content, advertising companies are urged to implement procedures that make doing so more probable. There are never-ending amounts of content on social media to regulate, making it difficult for entities like the FTC to know when rules are actually being broken.

Users can report undisclosed posts through their social media accounts directly, their state attorneys general office, or to the FTC. Private parties can also bring suit. In 2022, a travel agency group sued a travel influencer for deceptive advertising. The influencer made false claims, such as being the first woman to travel to every country and failed to disclose paid promotions on her Instagram and TikTok accounts. The group seeks to enjoin the influencer from advertising without disclosing and to engage in corrective measures on her remaining posts that violate the FTC’s rules. Social media users are better able to weigh the value of endorsements when they can see the truth behind such posts.

In a world filled with filters, when it comes to advertisements on social media, let’s just keep it real.

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