Kaitlin Campanini – Social Media Legality

The stigma surrounding mental illness has persisted since the mid-twentieth century. This stigma is one of the many reasons why 60% of adults with a mental illness often go untreated. The huge treatment disparity demonstrates a significant need to spread awareness and make treatment more readily available. Ironically, social media, which has been ridiculed for its negative impact on the mental health of its users, has become a really important tool for spreading awareness about and de-stigmatizing mental health treatment.

The content shared on social media is a combination of users sharing their experiences with a mental health condition and companies who treat mental health using advertisements to attract potential patients. At the first glance, this appears to be a very powerful way to use social media to bridge treatment gaps. However, it highlights concerns over vulnerable people seeing content and self-diagnosing themselves with a condition that they might not have and undergoing unnecessary, and potentially dangerous, treatment. Additionally, they might fail to undergo needed treatment because they are overlooking the true cause of their symptoms due to the misinformation they were subjected to.

Attention Deficit Hyperactivity Disorder (“ADHD”) is an example of a condition that social media has jumped on. #ADHD has 14.5 billion views on TikTok and 3 million posts on Instagram. Between 2007 and 2016, diagnoses of ADHD increased by 123%. Further, prescriptions for stimulants, which treat ADHD, have increased 16% since the pandemic. Many experts are attributing this, in large part, to the use of social media in spreading awareness about ADHD and the rise of telehealth companies that have emerged to treat ADHD during the pandemic. These companies have jumped on viral trends with targeted advertisements that oversimplify what ADHD actually looks like and then offers treatment to those that click on the advertisement.

The availability and reliance of telemedicine grew rapidly during the COVID-19 pandemic and many restrictions regarding telehealth were suspended. This created an opening in the healthcare industry for these new companies. ‘Done’ and ‘Cerebral’ are two examples of companies that have emerged during the pandemic to treat ADHD. These companies attract, accept, and treat patients through a very simplistic procedure: (1) social media advertisements, (2) short online questionnaire, (2) virtual visit, and (3) prescription.

Both Done and Cerebral have utilized social media platforms like Instagram and TikTok to lure potential patients to their services. The advertisements vary, but they all highlight how easy and affordable treatment is by emphasizing convenience, accessibility, and low cost. Accessing the care offered is as simple as swiping up on an advertisements that appear as users are scrolling on the platform. These targeted ads depict images of people seeking treatment, taking medication, and having their symptoms go away. Further, these companies utilize viral trends and memes to increase the effectiveness of the advertisements, which typically oversimplify complex ADHD symptoms and mislead consumers.

While these companies are increasing healthcare access for many patients due to the low cost and virtual platform, this speedy version of healthcare is blurring the line between offering treatment to patients and selling prescriptions to customers through social media. Further, medical professionals are concerned with how these companies are marketing addictive stimulants to young users, and, yet, remain largely unregulated due to outdated guidelines on advertisements for medical services.

The advertising model utilized by these telemedicine companies emphasize a need to modify existing laws to ensure that these advertisements are subjected to the FDA’s unique oversight to protect consumers. These companies are targeting young consumers and other vulnerable people to self-diagnose themselves with misleading information as to the criteria for a diagnosis. There are eighteen symptoms of ADHD and the average person meets at least one or two of those in the criteria, which is what these ads are emphasizing.

Advertisements in the medical sphere are regulated by either the FDA or the FTC. The FDA has unique oversight to regulate the marketing of prescription drugs by manufacturers and drug distributors in what is known as direct-to-consumer (“DTC”) drug advertising. The critics of prescription drug advertisements highlight the negative impact that DTC advertising has on the patient-provider relationship because patients go to providers expecting or requesting particular prescription treatment. In order to minimize these risks, the FDA requires that a prescription drug advertisement must be truthful, present a fair balance of the risks and benefits associated with the medications, and state an approved used of the medication. However, if the advertisement does not mention a particular drug or treatment, it eludes the FDA’s oversight.

Thus, the marketing of medical services, which does not market prescription drugs, is regulated only by the Federal Trade Commission (“FTC”) in the same manner as any other consumer good, which just means that the advertisement must not be false or misleading.

The advertisements these Telehealth companies are putting forward demonstrate that it is time for the FDA to step in because they are combining medical services and prescription drug treatment. They use predatory tactics to lure consumers into believing they have ADHD and then provide them direct treatment on a monthly subscription basis.

The potential for consumer harm is clear and many experts are pointing to the similarities between the opioid epidemic and stimulant drugs. However, the FDA has not currently made any changes to how they regulate advertising in light of social media. The laws regarding DTC drug advertising were prompted in part by the practice of self-diagnosis/self-medication by consumers and the false therapeutic claims made by manufacturers. The telemedicine model these companies are using is emphasizing these exact concerns by targeting consumers, convincing them they have a specific condition, and then offering the medication to treat it after quick virtual visit. Instead of patients going to their doctors requesting a specific prescription that may be inappropriate for a patient’s medical needs, patients are going to the telehealth providers that only prescribe a particular prescription that may also be inappropriate for a patient’s medical needs.

Through the use of social media, diagnosis and treatment with addictive prescription drugs can be initiated by an interactive advertisement in a manner that was not possible when the FDA made the distinctions that these types of advertisements would not be subject to its oversight. Thus, to protect consumers, it is vital that telemedicine advertisements are subjected to a more intrusive monitoring than consumer goods. This will require the companies making these advertisements to properly address the complex symptoms associated with conditions like ADHD and give fair balance to the harms of treatment.

According to the Pew Research Center, 69% of adults and 81% of teens in the United States use social media. Further, about 48% of Americans get their information regularly from social media. We often talk about misinformation in politics and news stories, but it’s permeating every corner of the internet. As these numbers continue to grow, it’s crucial to develop new methods to protect consumers, and regulating these advertisements is only the first step.

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.

Author: Kaitlin Campanini

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