Category: First Amendment

Privacy Please: Privacy Law, Social Media Regulation and the Evolving Privacy Landscape in the US

Social media regulation is a touchy subject in the United States.  Congress and the White House have proposed, advocated, and voted on various bills, aimed at protecting and guarding people from data misuse and misappropriation, misinformation, harms suffered by children, and for the implications of vast data collection. Some of the most potent concerns about social media stem from use and misuse of information by the platforms- from the method of collection, to notice of collection and use of collected information. Efforts to pass a bill regulating social media have been frustrated, primarily by the First Amendment right to free speech. Congress has thus far failed to enact meaningful regulation on social media platforms.

The way forward may well be through privacy law. Privacy laws give people some right to control their own personhood including their data, right to be left alone, and how and when people see and view them. Privacy laws originated in their current form in the late 1800’s with the impetus being one’s freedom from constant surveillance by paparazzi and reporters, and the right to control your own personal information. As technology mutated, our understanding of privacy rights grew to encompass rights in our likeness, our reputation, and our data. Current US privacy laws do not directly address social media, and a struggle is currently playing between the vast data collection practices of the platforms, immunity for platforms under Section 230, and private rights of privacy for users.

There is very little Federal Privacy law, and that which does exist is narrowly tailored to specific purposes and circumstances in the form of specific bills. Somes states have enacted their own privacy law scheme, California being on the forefront, Virginia, Colorado, Connecticut, and Utah following in its footsteps. In the absence of a comprehensive Federal scheme, privacy law is often judge-made, and offers several private rights of action for a person whose right to be left alone has been invaded in some way. These are tort actions available for one person to bring against another for a violation of their right to privacy.

Privacy Law Introduction

Privacy law policy in the United States is premised on three fundamental personal rights to privacy:

  1. Physical right to privacy- Right to control your own information
  2. Privacy of decisions– such as decisions about sexuality, health, and child-rearing. These are the constitutional rights to privacy. Typically not about information, but about an act that flows from the decision
  3. Proprietary Privacy – the ability to protect your information from being misused by others in a proprietary sense.

Privacy Torts

Privacy law, as it concerns the individual, gives rise to four separate tort causes of action for invasion of privacy:

  1. Intrusion upon Seclusion- Privacy law provides a tort cause of action for intrusion upon seclusion when someone intentionally intrudes upon the reasonable expectation of seclusion of another, physically or otherwise, and the intrusion is objectively highly offensive.
  2. Publication of Private Facts- One gives publicity To a matter concerning the Private life of another that is not of legitimate concern to the public, and the matter publicized would be objectively highly offensive. The first amendment provides a strong defense for publication of truthful matters when they are considered newsworthy.
  3. False Light – One who gives publicity to a matter concerning another that places the other before the public in a false light when The false light in which the other was placed would be objectively highly offensive and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
  4. Appropriation of name and likeness- Appropriation of one’s name or likeness to the defendant’s own use or benefit. There is no appropriation when a persona’s picture is used to illustrate a non-commercial, newsworthy article. This is usually commercial in nature but need not be. The appropriation could be of “identity”. It need not be misappropriation of name, it could be the reputation, prestige, social or commercial standing, public interest, or other value on the plaintiff’s likeness.

These private rights of action are currently unavailable for use against social media platforms because of Section 230 of the Decency in Communications Act, which provides broad immunity to online providers for posts on their platforms. Section 230 prevents any of the privacy torts from being raised against social media platforms.

The Federal Trade Commission (FTC) and Social Media

Privacy law can implicate social media platforms when their practices become unfair or deceptive to the public through investigation by the Federal Trade Commission (FTC). The FTC is the only federal agency with both consumer protection and competition jurisdiction in broad sectors of the economy. FTC investigates business practices where those practices are unfair or deceptive. FTC Act 15 U.S.C S 45- Act prohibits “unfair or deceptive acts or practices in or affecting commerce” and grants broad jurisdiction over privacy practices of businesses to the FTC. Trade practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and is not outweighed by countervailing benefits to consumers or competition. A deceptive act or practice is a material representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.

Critically, there is no private right of action in FTC enforcement. The FTC has no ability to enforce fines for S5 violations but can provide injunctive relief. By design, the FTC has very limited rulemaking authority, and looks to consent decrees and procedural, long-lasting relief as an ideal remedy. The FTC pursues several types of misleading or deceptive policy and practices that implicate social media platforms: notice and choice paradigms, broken promises, retroactive policy changes, inadequate notice, and inadequate security measures. Their primary objective is to negotiate a settlement where the company submits to certain measures of control of oversight by the FTC for a certain period of time. Violations of the agreements could yield additional consequences, including steep fines and vulnerability to class action lawsuits.

Relating to social media platforms, the FTC has investigated misleading terms and conditions, and violations of platform’s own policies. In Re Snapchat, the platform claimed that user’s posted information disappeared completely after a certain period of time, however, through third party apps and manipulation of user’s posts off of the platform, posts could be retained. The FTC and Snapchat settled, through a consent decree, to subject Snapchat to FTC oversight for 20 years.

The FTC has also investigated Facebook for violation of its privacy policy. Facebook has been ordered to pay a $5 billion penalty and to submit to new restrictions and a modified corporate structure that will hold the company accountable for the decisions it makes about its users’ privacy to settle FTC charges claiming that they violated a 2012 agreement with the agency.

Unfortunately, none of these measures directly give individuals more power over their own privacy. Nor do these policies and processes give individuals any right to hold platforms responsible for being misled by algorithms using their data, or for intrusion into their privacy by collecting data without allowing an opt-out.

Some of the most harmful social media practices today relate to personal privacy. Some examples include the collection of personal data, the selling and dissemination of data through the use of algorithms designed to subtly manipulate our pocketbooks and tastes, collection and use of data belonging to children, and the design of social media sites to be more addictive- all in service of the goal of commercialization of data.

No current Federal privacy scheme exists. Previous Bills on Privacy have been few and narrowly tailored to relatively specific circumstances and topics like healthcare and medical data protection by HIPPA, protection of data surrounding video rentals as in the Video Privacy Protection Act, and narrow protection for children’s data in Children’s Online Protection Act. All the schemes are outdated and fall short of meeting the immediate need of broad protection of widely collected and broadly utilized data from social media.

Current Bills on Privacy

Upon request from some of the biggest platforms, outcry from the public, and the White House’s request for Federal Privacy regulation, Congress appears poised to act. The 118th Congress has pushed privacy law as a priority in this term by introducing several bills related to social media privacy. There are at least ten Bills currently pending between the House of the Senate addressing a variety of issues and concerns from Children’s data privacy to the minimum age for use and designation of a new agency to monitor some aspects of privacy.

S744– The Data Care Act of 2023 aims to protect social media user’s data privacy by imposing fiduciary duties on the platforms. The original iteration of the bill was introduced in 2021 and failed to receive a vote. It was re-introduced in March of 2023 and is currently pending. Under the act, social media platforms would have the duty to reasonably secure user’s data from access, refrain from using the data in a way that could foreseeably “benefit the online service provider to the detriment of the end user” and to prevent disclosure of user’s data unless the party is also bound by these duties. The bill authorizes the FTC and certain state officials to take enforcement actions upon breach of those duties. The states would be permitted to take their own legal action against companies for privacy violations. The bill would also allow the FTC to intervene in the enforcement efforts by imposing fines for violations.

H.R.2701 – Perhaps the most comprehensive piece of legislation on the House floor is the Online Privacy Act. In 2023, the bill was reintroduced by democrat Anna Eshoo after an earlier version on the bill failed to receive a vote and died in Congress. The Online Privacy Act aims to protect users by providing individuals rights relating to the privacy of their personal information. The bill would also provide privacy and security requirements for treatment of personal information. To accomplish this, the bill established a new agency – the Digital Privacy Agency- which would be responsible for enforcement of the rights and requirements. The new individual rights in privacy are broad and include the rights of access, correction, deletion, human review of automated decision, individual autonomy, right to be informed, and right to impermanence, amongst others. This would be the most comprehensive plan to date. The establishment of a new agency with a task specific to administration and enforcement of privacy laws would be incredibly powerful. The creation of this agency would be valuable irrespective of whether this bill is passed.

HR 821– The Social Media Child Protection Act is a sister bill to one by a similar name which originated in the Senate. This bill aims to protect children from the harms of social media by limiting children’s access to it. Under the bill, Social Media platforms are required to verify the age of every user before accessing the platform by submitting a valid identity document or by using another reasonable verification method. A social media platform will be prohibited from allowing users under the age of 16 to access the platform. The bill also requires platforms to establish and maintain reasonable procedures to protect personal data collected from users. The bill affords for a private right of action as well as state and FTC enforcement.

S 1291–The Protecting Kids on Social Media Act is similar to its counterpart in the House, with slightly less tenacity. It similarly aims to protect children from social media’s harms. Under the bill, platforms must verify its user’s age, not allow the user to use the service unless their age has been verified, and must limit access to the platform for children under 12. The bill also prohibits retention and use of information collected during the age verification process. Platforms must take reasonable steps to require affirmative consent from the parent or guardian of a minor who is at least 13 years old for the creation of a minor account, and reasonably allow access for the parent to later revoke that consent. The bill also prohibits use of data collected from minors for algorithmic recommendations. The bill would require the Department of Commerce to establish a voluntary program for secure digital age verification for social media platforms. Enforcement would be through the FTC or state action.

S 1409– The Kids Online Safety Act, proposed by Senator Blumenthal of Connecticut, also aims to protect minors from online harms. This bill, as does the Online Safety Bill, establishes fiduciary duties for social media platforms regarding children using their sites. The bill requires that platforms act in the best interest of minors using their services, including mitigating harms that may arise from use, sweeping in online bullying and sexual exploitation. Social media sites would be required to establish and provide access to safeguards such as settings that restrict access to minor’s personal data and granting parents the tools to supervise and monitor minor’s use of the platforms. Critically, the bill establishes a duty for social media platforms to create and maintain research portals for non-commercial purposes to study the effect that corporations like the platforms have on society.

Overall, these bills indicate Congress’s creative thinking and commitment to broad privacy protection for users from social media harms. I believe the establishment of a separate body to govern, other than the FTC which lacks the powers needed to compel compliance, to be a necessary step. Recourse for violations on par with the EU’s new regulatory scheme, mainly fines in the billions, could help.

Many of the bills, for myriad aims, establish new fiduciary duties for the platforms in preventing unauthorized use and harms for children. There is real promise in this scheme- establishing duty of loyalty, diligence and care for one party has a sound basis in many areas of law and would be more easily understood in implementation.

The notion that platforms would need to be vigilant in knowing their content, studying its affects, and reporting those effects may do the most to create a stable future for social media.

The legal responsibility for platforms to police and enforce their policies and terms and conditions is another opportunity to further incentivize platforms. The FTC currently investigates policies that are misleading or unfair, sweeping in the social media sites, but there could be an opportunity to make the platforms legally responsible for enforcing their own policies, regarding age, against hate, and inappropriate content, for example.

What would you like to see considered in Privacy law innovation for social media regulation?

Destroying Defamation

The explosion of Fake News spread among social media sites is destroying a plaintiff’s ability to succeed in a defamation action. The recent proliferation of rushed journalism, online conspiracy theories, and the belief that most stories are, in fact, “Fake News” have created a desert of veracity. Widespread public skepticism about even the most mainstream social media reporting means plaintiffs need help convincing jurors that third parties believed any reported statement to be true. Such proof is necessary for a plaintiff to prove the elements of defamation.

Fake News Today

Fake News is any journalistic story that knowingly and intentionallyincludes untrue factual statements. Today, many speak of Fake News as a noun. There is no shortage of examples of Fake News and its impact.

      • Pizzagate: During the 2016 Presidential Election, Edgar Madison Welch, 28, read a story on (then) Facebook that Hilary Clinton was running a child trafficking ring out of the basement of a pizzeria. Welch, a self-described vigilante, shot open a locked door of the pizzeria with his AR-15.
      • A study by three MIT scholars found that false news stories spread faster on Twitter than true stories, with the former being 70% more likely to be retweeted than the latter.
      • During the defamation trial of Amber Heard and Johnny Depp, a considerable number of “Fake News” reports circulated across social media platforms, particularly TikTok, Twitter, and YouTube, attacking Ms. Heard at a disproportionality more significant rate than Mr. Depp.

 

What is Defamation?

To establish defamation, a plaintiff must show the defendant published a false assertion of fact that damages the plaintiff’s reputation. Hyperbolic language or other indications that a statement was not meant to be taken seriously are not actionable. Today’s understanding that everything on the Internet is susceptible to manipulation destroys defamation.

Because the factuality of a statement is a question of law, a plaintiff must first convince a judge that the offending statement is fact and not opinion. Courts often find that Internet and social media statements are hyperbole or opinion. If a plaintiff succeeds in persuading the judge, then the issue of whether the statement defamed the plaintiff heads to the jury. A jury faced with defamation must determine whether the statement of fact harmed the defendant’s reputation or livelihood to the extent that it caused the plaintiff to incur damages. The prevalence of Fake News creates another layer of difficulty for the Internet plaintiff, who must convince the jury that the statement was true.

Defamation’s Slow and Steady Erosion

Since the 1960s, the judiciary has limited plaintiffs’ ability to succeed in defamation claims. The decisions in Sullivan v. New York Times and Gertz increased the difficulty for public figures, and those with limited public figure status, to succeed by requiring them to prove actual malice against a defendant, a standard higher than the mere negligence standard allowed for individuals who are not of community interest.

The rise of Internet use, mainly social media, presents plaintiffs with yet another hurdle. Plaintiffs can only succeed if the challenged statement is fact, not opinion. However, judges find that statements made on the Internet are opinions and not points. The combined effect of Supreme Court limitations on proof and the increased belief that social media posts are mostly opinions has limited the plaintiff’s ability to succeed in a defamation claim.

Destroying Defamation

If the Supreme Court and social media have eroded defamation, Fake News has destroyed it. Today, convincing a jury that a false statement purporting to be fact has defamed a plaintiff is difficult given the dual issues of society’s objective mistrust of the media and the understanding that information on the Internet is generally opinion, not fact. Fake News sows confusion and makes it almost impossible for jurors to believe any statement has the credibility necessary to cause harm.

To be clear, in some instances, fake News is so intolerable that a jury will find for the plaintiffs. A Connecticut jury found conspiracy theorist Alex Jones liable for defamation based on his assertion that the government had faked the Sandy Hook shootings.

But often, plaintiffs are unsuccessful where the challenged language is conflated with untruths. Fox News successfully defended itself against a lawsuit claiming that it had aired false and deceptive content about the coronavirus, even though its reporting was, in fact, untrue.

Similarly, a federal judge dismissed a defamation case against Fox News for Tucker Carlson’s report that the plaintiff had extorted then-President Donald Trump. In reaching its conclusion, the judge observed that Carlson’s comments were rhetorical hyperbole and that the reasonable viewer “‘arrive[s] with the appropriate amount of skepticism.”‘ Reports of media success in defending against defamation claims further fuel media mistrust.

The current polarization caused by identity politics is furthering the tendency for Americans to mistrust the media. Sarah Palin announced that the goal of her recent defamation case against The New York Times was to reveal that the “lamestream media” publishes “fake news.”

If jurors believe that no reasonable person could credit a challenged statement as accurate, they cannot find that the statement the plaintiff asserts is defamatory caused harm. An essential element of defamation is that the defendant’s remarks damaged the plaintiff’s reputation. The large number of people who believe News is fake, the media’s rush to publish, and external attacks on credible journalism have created a problematization of truth among members of society. The potential for defamatory harm is minimal when every news story is questionable. Ultimately, the presence of Fake News is a blight on the tort of defamation and, like the credibility of present-day news organizations, will erode it to the point of irrelevance.

Is there any hope for a world without Fake News?

 

Update Required: An Analysis of the Conflict Between Copyright Holders and Social Media Users

Opening

For anyone who is chronically online as yours truly, in one way or another we have seen our favorite social media influencers, artists, commentators, and content creators complain about their problems with the current US Intellectual Property (IP) system. Be it that their posts are deleted without explanation or portions of their video files are muted, the combination of factors leading to copyright issues on social media is endless. This, in turn, has a markedly negative impact on free and fair expression on the internet, especially within the context of our contemporary online culture. For better or worse, interaction in society today is intertwined with the services of social media sites. Conflict arises when the interests of copyright holders clash with this reality. They are empowered by byzantine and unrealistic laws that hamper our ability to exist as freely as we do in real life. While they do have legitimate and fundamental rights that need to be protected, such rights must be balanced out with desperately needed reform. People’s interaction with society and culture must not be hampered, for that is one of the many foundations of a healthy and thriving society. To understand this, I venture to analyze the current legal infrastructure we find ourselves in.

Current Relevant Law

The current controlling laws for copyright issues on social media are the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). The DMCA is most relevant to our analysis; it gives copyright holders relatively unrestrained power to demand removal of their property from the internet and to punish those using illegal methods to get ahold of their property. This broad law, of course, impacted social media sites. Title II of the law added 17 U.S. Code § 512 to the Copyright Act of 1976, creating several safe harbor provisions for online service providers (OSP), such as social media sites, when hosting content posted by third parties. The most relevant of these safe harbors to this issue is 17 U.S. Code § 512(c), which states that an OSP cannot be liable for monetary damages if it meets several requirements and provides a copyright holder a quick and easy way to claim their property. The mechanism, known as a “notice and takedown” procedure, varies by social media service and is outlined in their terms and conditions of service (YouTube, Twitter, Instagram, TikTok, Facebook/Meta). Regardless, they all have a complaint form or application that follows the rules of the DMCA and usually will rapidly strike objectionable social media posts by users. 17 U.S. Code § 512(g) does provide the user some leeway with an appeal process and § 512(f) imposes liability to those who send unjustifiable takedowns. Nevertheless, a perfect balance of rights is not achieved.

The doctrine of fair use, codified as 17 U.S. Code § 107 via the Copyright Act of 1976, also plays a massive role here. It established a legal pathway for the use of copyrighted material for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without having to acquire right to said IP from the owner. This legal safety valve has been a blessing for social media users, especially with recent victories like Hosseinzadeh v. Klein, which protected reaction content from DMCA takedowns. Cases like Lenz v. Universal Music Corp further established that fair use must be considered by copyright holders when preparing for takedowns. Nevertheless, failure to consider said rights by true copyright holders still happens, as sites are quick to react to DMCA complaints. Furthermore, the flawed reporting systems of social media sites lead to abuse by unscrupulous actors faking true ownership. On top of that, such legal actions can be psychologically and financially intimidating, especially when facing off with a major IP holder, adding to the unbalanced power dynamic between the holder and the poster.

The Telecommunications Act of 1996, which focuses primarily on cellular and landline carriers, is also particularly relevant to social media companies in this conflict. At the time of its passing, the internet was still in its infancy. Thus, it does not incorporate an understanding of the current cultural paradigm we find ourselves in. Specifically, the contentious Section 230 of the Communication Decency Act (Title V of the 1996 Act) works against social media companies in this instance, incorporating a broad and draconian rule on copyright infringement. 47 U.S. Code § 230(e)(2) states in no uncertain terms that “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” This has been interpreted and restated in Perfect 10, Inc. v. CCBill LLC to mean that such companies are liable for user copyright infringement. This gap in the protective armor of Section 230 is a great concern to such companies, therefore they react strongly to such issues.

What is To Be Done?

Arguably, fixing the issues around copyright on social media is far beyond the capacity of current legal mechanisms. With ostensibly billions of posts each day on various sites, regulation by copyright holders and sites is far beyond reason. It will take serious reform in the socio-cultural, technological, and legal arenas before a true balance of liberty and justice can be established. Perhaps we can start with an understanding by copyright holders not to overreact when their property is posted online. Popularity is key to success in business, so shouldn’t you value the free marketing that comes with your copyrighted property getting shared honestly within the cultural sphere of social media?  Social media sites can also expand their DMCA case management teams or create tools for users to accredit and even share revenue with, if they are an influencer or content creator, the copyright holder. Finally, congressional action is desperately needed as we have entered a new era that requires new laws. That being said, achieving a balance between the free exchange of ideas and creations and the rights of copyright holders must be the cornerstone of the government’s approach to socio-cultural expression on social media. That is the only way we can progress as an ever more online society.

 

Image: Freepik.com

https://www.freepik.com/free-vector/flat-design-intellectual-property-concept-with-woman-laptop_10491685.htm#query=intellectual%20property&position=2&from_view=keyword”>Image by pikisuperstar

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

  1. awareness of emotional responses,
  2. lack of clarity of emotional reactions,
  3. non-acceptance of emotional responses,
  4. limited access to emotion regulation strategies perceived as applicable,
  5. difficulties controlling impulses when experiencing negative emotions, and
  6. 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. 

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.

A Uniquely Bipartisan Push to Amend/Repeal CDA 230

Last month, I wrote a blog post about the history and importance of the Communications Decency Act, section 230 (CDA 230). I ended that blog post by acknowledging the recent push to amend or repeal section 230 of the CDA. In this blog post, I delve deeper into the politics behind the push to amend or repeal this legislation.

“THE 26 WORDS THAT SHAPED THE INTERNET”

If you are unfamiliar with CDA 230, it is the sole legislation that governs the internet world. Also known as “the 26 words that shaped the internet” Congress specifically articulated in the act that the internet is able to flourish, due to a “minimum of government regulation.” This language has resulted in an un-regulated internet, ultimately leading to problems concerning misinformation.

Additionally, CDA 230(c)(2) limits civil liability for posts that social media companies publish. This has caused problems because social media companies lack motivation to filter and censor posts that contain misinformation.

“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” (47 U.S.C. § 230).

Section 230’s liability shade has been extended far beyond Congress’s original intent, which was to protect social media companies against defamation claims. The features of this legislation have resulted in a growing call to update section 230.

In this day and age, an idea or movement rarely gains bi-partisan support anymore. Interestingly, though, amending, or repealing section 230 has gained recent bipartisan support. As expected, however, each party has differing reasons as to why the law should be changed.

BIPARTISAN OPPOSITION

Although the two political parties are in agreement that the legislation should be amended, their reasoning behind it stems from differing places. Republicans tend to criticize CDA 230 for allowing social media companies to selectively censor conservative actors and posts. In contrast, democrats criticize the law for allowing social media companies to disseminate false, and deceptive information.

 DEMOCRATIC OPPOSITION

On the democratic side of the aisle, President Joe Biden has repeatedly called for Congress to repeal the law. In an interview with The New York Times, President Biden was asked about his personal view regarding CDA 230, in which he replied…

“it should be revoked. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy. You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.”

House Speaker Nancy Pelosi has also voiced opposition, calling CDA 230 “a gift” to the tech industry that could be taken away.

The law has often been credited by the left for fueling misinformation campaigns, like Trumps voter fraud theory, and false COVID information. In response, social media platforms began marking certain posts as unreliable.  This led to the reasoning behind republicans opposition to section 230.

REPUBLICAN OPPOSITION

Former President Trump has voiced his opposition to CDA 230 numerous times. He first started calling for the repeal of the legislation in May of 2020, after Twitter flagged two of his tweets regarding mail-in voting, with a warning label that stated “Get the facts about mail-in ballots.” In fact, in December, Donald Trump, the current President at the time, threatened to veto the National Defense Authorization Act annual defense funding bill, if CDA 230 was not revoked. The former presidents opposition was so strong, he issued an Executive Order in May of last year urging the government to re-visit CDA 230. Within the order, the former president wrote…

“Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor …”

The executive order also asked the Federal Communications Commission to write regulations that would remove protections for companies that “censored” speech online. Although the order didn’t technically affect CDA 230, and was later revoked by President Biden, it resulted in increased attention on this archaic legislation.

LONE SUPPORTERS

Support for the law has not completely vanished, however. As expected, many social media giants support leaving CDA 230 untouched. The Internet Association, an industry group representing some of the largest tech companies like Google, Facebook, Amazon, and Microsoft, recently announced that the “best of the internet would disappear” without section 230, warning that it would lead to numerous companies being subject to an array of lawsuits.

In a Senate Judiciary hearing in October 2020, Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey warned that revoking Section 230 could…

“collapse how we communicate on the Internet.”

However, Mark Zuckerberg took a more moderate position as the hearing continued, telling Congress that he thought lawmakers should update the law.

Facebook has taken a more moderate approach by acknowledging that 230 should be updated. This approach is likely in response to public pressure due to increased awareness. Irregardless, it signifies a likely chance that section 23o will be updated in the future, since Facebook represents one of the largest social media companies protected by 230. A complete repeal of this law would create such major impacts, however, that this scenerio seems unlikely to happen. Nevertheless, growing calls for change, and a Democratic controlled Congress points to a likelihood of future revision of the section.

DIFFERING OPINIONS

Although both sides of Washington, and even some social media companies, agree the law should be amended; the two sides differ greatly on how to change the law.

As mentioned before, President Biden has voiced his support for repealing CDA 230 altogether. Alternatively, senior members of his party, like Nancy Pelosi have suggested simply revising or updating the section.

Republican Josh Hawley recently introduced legislation to amend section 230. The proposed legislation would require companies to prove a “duty of good faith,” when moderating their sites, in order to receive section 230 immunity. The legislation included a $5,000 fee for companies that don’t comply with the legislation.

Senator Ted Cruz has advocated for a complete repeal of section 230, reasoning that…

“big tech enjoys an immunity from liability on the assumption they would be neutral and fair. If they’re not going to be neutral and fair, if they’re going to be biased, we should repeal the immunity from liability so they should be liable like the rest of us.”

Adding to the confusion of the section 230 debate, many fear the possible implications of repealing or amending the law.

FEAR OF CHANGE

Because CDA 230 has been referred to as “the first amendment of the internet,” many people fear that repealing this section altogether would result in a limitation on free speech online. Although President Biden has voiced his support for this approach, it seems unlikely to happen, as it would result in massive implications.

One major implication of repealing or amending CDA 230 is that it could allow for numerous lawsuits against social media companies. Not only would major social media companies be affected by this, but even smaller companies like Slice, could become the subject of defamation litigation by allowing reviews to be posted on their website. This could lead to an existence of less social media platforms, as some would not be able to afford legal fees. Many fear that these companies would further censor online posts for fear of being sued. This may also result in higher costs for these platforms. In contrast, companies could react by allowing everything, and anything to be posted, which could result in an unwelcome online environment. This would be in stark contrast to the Congress’s original intent in the creation of the CDA, to protect children from seeing indecent posts on the internet.

FUTURE CHANGE..?

 

Because of the intricacy of the internet, and the archaic nature of CDA 230, there are many differing opinions as to how to successfully fix the problems the section creates. There are also many fears about the consequences of getting rid of the legislation. Are there any revisions you can think of that could successfully deal with the republicans main concern, censorship? Can you think of any solutions for dealing with the democrats concern of limiting the spread of misinformation. Do you think there is any chance that section 230 will be repealed altogether? If the legislation were to be repealed, would new legislation need to be created to replace CDA 230?

 

AI Avatars: Seeing is Believing

Have you ever heard of deepfake? The term deepfake comes from “deep learning,” a set of intelligent algorithms that can learn and make decisions on their own. By applying deep learning, deepfake technology replaces faces from the original images or videos with another person’s likeness.

What does deep learning have to do with switching faces?

Basically, deepfake allows AI to learn automatically from its data collection, which means the more people try deepfake, the faster AI learns, thereby making its content more real.

Deepfake enables anyone to create “fake” media.

How does Deepfake work?

First, an AI algorithm called an encoder collects endless face shots of two people. The encoder then detects similarities between the two faces and compresses the images so they can be delivered. A second AI algorithm called a decoder receives the package and recovers it to reconstruct the images to perform a face swap.

Another way deepfake uses to swap faces is GAN, or a generative adversarial network. A GAN adds two AI algorithms against each other, unlike the first method where encoder and decoder work hand in hand.
The first algorithm, the generator, is given random noise and converts it into an image. This synthetic image is then added to a stream of real photos like celebrities. This combination of images gets delivered to the second algorithm, the discriminator. After repeating this process countless times, the generator and discriminator both improve. As a result, the generator creates completely lifelike faces.

For instance, Artist Bill Posters used deepfake technology to create a fake video of Mark Zuckerberg , saying that Facebook’s mission is to manipulate its users.

Real enough?

How about this. Consider having Paris Hilton’s famous quote, “If you don’t even know what to say, just be like, ‘That’s hot,’” replaced by Vladimir Putin, President of Russia. Those who don’t know either will believe that Putin is a Playboy editor-in-chief.

Yes, we can all laugh at these fake jokes. But when something becomes overly popular, it has to come with a price.

Originally, deepfake was developed by an online user of the same name for the purpose of entertainment, as the user had put it.

Yes, Deepfake meant pornography.

The biggest problem of deepfake is that it is challenging to detect the difference and figure out which one is the original. It has become more than just superimposing one face onto another.

Researchers found that more than 95% of deepfake videos were pornographic, and 99% of those videos had faces replaced with female celebrities. Experts explained that these fake videos lead to the weaponization of artificial intelligence used against women, perpetuating a cycle of humiliation, harassment, and abuse.

How do you spot the difference?

As mentioned earlier, the algorithms are fast learners, so for every breath we take, deepfake media becomes more real. Luckily, research showed that deepfake faces do not blink normally or even blink at all. That sounds like one easy method to remember. Well, let’s not get ahead of ourselves just yet. When it comes to machine learning, nearly every problem gets corrected as soon as it gets revealed. That is how algorithms learn. So, unfortunately, the famous blink issue already had been solved.

But not so fast. We humans may not learn as quickly as machines, but we can be attentive and creative, which are some qualities that tin cans cannot possess, at least for now.
It only takes extra attention to detect Deepfake. Ask these questions to figure out the magic:

Does the skin look airbrushed?
Does the voice synchronize with the mouth movements?
Is the lighting natural, or does it make sense to have that lighting on that person’s face?

For example, the background may be dark, but the person may be wearing a pair of shiny glasses reflecting the sun’s rays.

Oftentimes, deepfake contents are labeled as deepfake because creators want to display themselves as artists and show off their works.
In 2018, a software named Deeptrace was developed to detect deepfake contents. A deeptrace lab reported that deepfake videos are proliferating online, and its rapid growth is “supported by the growing commodification of tools and services that lower the barrier for non-experts—from well-maintained open source libraries to cheap deepfakes-as-a-service websites.”

The pros and cons of deepfake

It may be self-explanatory to name the cons, but here are some other risks deepfake imposes:

  • Destabilization: the misuse of deepfake can destabilize politics and international relations by falsely implicating political figures in scandals.
  • Cybersecurity: the technology can also negatively influence cybersecurity by having fake political figures incite aggression.
  • Fraud: audio deepfake can clone voices to convince people to believe that they are talking to actual people and induce them into giving away private information.

Well then, are there any pros to deepfake technology other than having entertainment values? Surprisingly, a few:

  • Accessibility: deepfake creates various vocal personas that can turn text into speech, which can help with speech impediments.
  • Education: deepfake can deliver innovative lessons that are more engaging and interactive than traditional lessons. For example, deepfake can bring famous historical figures back to life and explain what happened during their time. Deepfake technology, when used responsibly, can be served as a better learning tool.
  • Creativity: instead of hiring a professional narrator, implementing artificial storytelling using audio deepfake can tell a captivating story and let its users do so only at a fraction of the cost.

If people use deepfake technology with high ethical and moral standards on their shoulders, it can create opportunities for everyone.

Case

In a recent custody dispute in the UK, the mother presented an audio file to prove that the father had no right to take away their child. In the audio, the father  was heard making a series of violent threats towards his wife.

The audio file was compelling evidence. When people thought the mother would be the one to walk out with a smile on her face, the father’s attorney thought something was not right. The attorney challenged the evidence, and it was revealed through forensic analysis that the audio was tailored using a deepfake technology.

This lawsuit is still pending. But do you see any other problems in this lawsuit? We are living in an era where evidence tampering is easily available to anyone with the Internet. It would require more scrutiny to figure out whether evidence is altered.

Current legislation on deepfake.

The National Defense Authorization Act for Fiscal Year 2021 (“NDAA”), which became law as Congress voted to override former President Trump’s veto, also requires the Department of Homeland Security (“DHS”) to issue an annual report for the next five years on manipulated media and deepfakes.

So far, only three states took action against deepfake technology.
On September 1, 2019, Texas became the first state to prohibit the creation and distribution of deepfake content intended to harm candidates for public office or influence elections.
Similarly, California also bans the creation of “videos, images, or audio of politicians doctored to resemble real footage within 60 days of an election.”
Also, in 2019, Virginia banned deepfake pornography.

What else does the law say?

Deep fakes are not illegal per se. But depending on the content, a deepfake can breach data protection law, infringe copyright and defamation. Additionally, if someone shares non-consensual content or commits a revenge porn crime, it is punishable depending on the state law. For example, in New York City, the penalties for committing a revenge porn crime are up to one year in jail and a fine of up to $1,000 in criminal court.

Henry Ajder, head of threat intelligence at Deeptrace, raised another issue: “plausible deniability,” where deepfake can wrongfully provide an opportunity for anyone to dismiss actual events as fake or cover them up with fake events.

What about the First Amendment rights?

The First Amendment of the U.S. Constitution states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There is no doubt that injunctions against deepfakes are likely to face First Amendment challenges. The First Amendment will be the biggest challenge to overcome. Even if the lawsuit survives, lack of jurisdiction over extraterritorial publishers would inhibit their effectiveness, and injunctions will not be granted unless under particular circumstances such as obscenity and copyright infringement.

How does defamation law apply to deepfake?

How about defamation laws? Will it apply to deepfake?

Defamation is a statement that injures a third party’s reputation.  To prove defamation, a plaintiff must show all four:

1) a false statement purporting to be fact;

2) publication or communication of that statement to a third person;

3) fault amounting to at least negligence; and

4) damages, or some harm caused to the person or entity who is the subject of the statement.

As you can see, deepfake claims are not likely to succeed under defamation because it is difficult to prove that the content was intended to be a statement of fact. All that the defendant will need to protect themselves from defamation claims is to have the word “fake” somewhere in the content. To make it less of a drag, they can simply say that they used deep”fake” to publish their content.

Pursuing a defamation claim against nonconsensual deepfake pornography also poses a problem. The central theme of the claim is the nonconsensual part, and our current defamation law fails to address whether or not the publication was consented to by the victim.

To reflect our transformative impact of artificial intelligence, I would suggest making new legislation to regulate AI-backed technology like deepfake. Perhaps this could lower the hurdle that plaintiffs must face.
What are your suggestions in regards to deepfake? Share your thoughts!

 

 

 

 

 

Can Social Media Be Regulated?

In 1996 Congress passed what is known as Section 230 of the Communications Decency Act (CDA) which provides immunity to website publishers for third-party content posted on their websites. The CDA holds that “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.” This Act passed in 1996, was created in a different time and era, one that could hardly envision how fast the internet would grow in the coming years. In 1996, social media for instance consisted of a little-known social media website called Bolt, the idea of a global world wide web, was still very much in its infancy. The internet was still largely based on dial-up technology, and the government was looking to expand the reach of the internet. This Act is what laid the foundation for the explosion of Social Media, E-commerce, and a society that has grown tethered to the internet.

The advent of Smart-Phones in the late 2000s, coupled with the CDA, set the stage for a society that is constantly tethered to the internet and has allowed companies like Facebook, Twitter, YouTube, and Amazon to carve out niches within our now globally integrated society.   Facebook alone in the 2nd quarter of 2021 has averaged over 1.9 billion daily users.

Recent studs conducted by the Pew Research Center show that “[m]ore than eight in ten Americans get news from digital services”

Large majority of Americans get news on digital devices

While older members of society still rely on news media online, the younger generation, namely those 18-29 years of age, receive their news via social media.

Online, most turn to news websites except for the youngest, who are more likely to use social media

The role Social Media plays in the lives of the younger generation needs to be recognized. Social Media has grown at a far greater rate than anyone could imagine. Currently, Social Media operates under its modus operandi, completely free of government interference due to its classification as a private entity, and its protection under Section 230.

Throughout the 20th century when Television News Media dominated the scenes, laws were put into effect to ensure that television and radio broadcasters would be monitored by both the courts and government regulatory commissions. For example, “[t]o maintain a license, stations are required to meet a number of criteria. The equal-time rule, for instance, states that registered candidates running for office must be given equal opportunities for airtime and advertisements at non-cable television and radio stations beginning forty-five days before a primary election and sixty days before a general election.”

What these laws and regulations were put in place for was to ensure that the public interest in broadcasting was protected. To give substance to the public interest standard, Congress has from time to time enacted requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters’ public interest obligations as circumstances changed.

The Federal Communications Commission (FCC) authority is constrained by the first amendment but acts as an intermediary that can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees. The Supreme Court has continuously upheld the public trustee model of broadcast regulation as constitutional. The criticisms of regulating social media center on the notion that they are purely private entities that do not fall under the purviews of the government, and yet these same issues are what presented themselves in the precedent-setting case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969.  In this case, the court held that “rights of the listeners to information should prevail over those of the broadcasters.” The Court’s holding centered on the public right to information over the rights of a broadcast company to choose what it will share, this is exactly what is at issue today when we look at companies such as Facebook, Twitter, and Snapchat censuring political figures who post views that they feel may be inciteful of anger or violence.

In essence, what these organizations are doing is keeping information and views from the attention of the present-day viewer. The vessel for the information has changed, it is no longer found in television or radio but primarily through social media. Currently, television and broadcast media are restricted by Section 315(a) of the Communications Act and Section 73.1941 of the Commission’s rules which “require that if a station allows a legally qualified candidate for any public office to use its facilities (i.e., make a positive identifiable appearance on the air for at least four seconds), it must give equal opportunities to all other candidates for that office to also use the station.” This is a restriction that is nowhere to be found for Social Media organizations. 

This is not meant to argue for one side or the other but merely to point out that there is a political discourse being stifled by these social media entities, that have shrouded themselves in the veils of a private entity. However, what these companies fail to mention is just how political they truly are. For instance, Facebook proclaims itself to be an unbiased source for all parties, and yet what it fails to mention is that currently, Facebook employs one of the largest lobbyist groups in Washington D.C. Four Facebooks lobbyist have worked directly in the office of House Speaker Pelosi. Pelosi herself has a very direct connection to Facebook, she and her husband own between $550,000 to over $1,000,000 in Facebook stock. None of this is illegal, however, it raises the question of just how unbiased is Facebook.

If the largest source of news for the coming generation is not television, radio, or news publications themselves, but rather Social Media such as Facebook, then how much power should they be allowed to wield without there being some form of regulation? The question being presented here is not a new one, but rather the same question asked in 1969, simply phrased differently. How much information is a citizen entitled to, and at what point does access to that information outweigh the rights of the organization to exercise its editorial discretion? I believe that the answer to that question is the same now as it was in 1969 and that the government ought to take steps similar to those taken with radio and television. What this looks like is ensuring that through Social Media, that the public has access to a significant amount of information on public issues so that its members can make rational political decisions. At the end of that day that it was at stake, the public’s ability to make rational political decisions.

These large Social Media conglomerates such as Facebook and Twitter have long outgrown their place as a private entity, they have grown into a public medium that has tethered itself to the realities of billions of people. Certain aspects of it need to be regulated, mainly those that interfere with the Public Interest, there are ways to regulate this without interfering with the overall First Amendment right of Free Speech for all Americans. Where however Social Media blends being a private forum for all people to express their ideas under firmly stated “terms and conditions”, and being an entity that strays into the political field whether it be by censoring heads of state, or by hiring over $50,000,000 worth of lobbyist in Washington D.C, there need to be some regulations put into place that draw the line that ensures the public still maintains the ability to make rational political decisions. Rational decisions that are not influenced by anyone organization. The time to address this issue is now when there is still a middle ground on how people receive their news and formulate opinions.

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