Category: Media

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?

Social Media, Minors, and Algorithms, Oh My!

What is an algorithm and why does it matter?

Social media algorithms are intricately designed data organization systems aimed at maximizing user engagement by sorting and delivering content tailored to individual preferences. At their core, social media algorithms collect and subsequently use extensive user data, employing machine learning techniques to better understand and predict user behavior. Social media algorithms note and analyze hundreds of thousands of data points, including past interactions, likes, shares, content preferences, time spent viewing content, and social connections to curate a personalized feed for each user. Social media algorithms are designed this way to keep users on the site, thus giving the site more time to put advertisements on the user’s feed and drive more profits for the social media site in question. The fundamental objective of an algorithm is to capture and maintain user attention, expose the user to an optimal amount of advertisements, and use data from users to curate their feed to keep them engaged for longer.

Addiction comes in many forms

One key element contributing to the addictiveness of social media is the concept of variable rewards. Algorithms strategically present a mix of content, varying in type and engagement level, to keep users interested in their feed. This unpredictability taps into the psychological principle of operant conditioning, where intermittent reinforcement, such as receiving likes, comments, or discovering new content, reinforces habitual platform use. Every time a user sees an entertaining post or receives a positive notification, the brain releases dopamine, the main chemical associated with addiction and addictive behaviors. The constant stream of notifications and updates, fueled by algorithmic insights and carefully tailored content suggestions, can create a sense of anticipation in users for their next dopamine fix, which encourages users to frequently update and scan their feeds to receive the next ‘reward’ on their timeline. The algorithmic and numbers-driven emphasis on user engagement metrics, such as the amount of likes, comments, and shares on a post, further intensifies the competitive and social nature of social media platforms, promoting frequent use.

Algorithms know you too well

Furthermore, algorithms continuously adapt to user behavior through real-time machine learning. As users engage with content, algorithms will analyze and refine their predictions, ensuring that the content remains compelling and relevant to the user over time. This iterative feedback loop further deepens the platform’s understanding of individual users, creating a specially curated and highly addictive feed that the user can always turn to for a boost of dopamine. This heightened social aspect, coupled with the algorithms’ ability to surface content that resonates deeply with the user, enhances the emotional connection users feel to the platform and their specific feed, which keeps users coming back time after time. Whether it be from seeing a new, dopamine-producing post, or posting a status that receives many likes and shares, every time one opens a social media app or website, it can produce seemingly endless new content, further reinforcing regular, and often unhealthy use.

A fine line to tread

As explained above, social media algorithms are key to user engagement. They are able to provide seemingly endless bouts of personalized content and maintain users’ undivided attention through their ability to understand the user and the user’s preferences in content. This pervasive influence extends to children, who are increasingly immersed in digital environments from an early age. Social media algorithms can offer constructive experiences for children by promoting educational content discovery, creativity, and social connectivity that would otherwise be impossible without a social media platform. Some platforms, like YouTube Kids, leverage algorithms to recommend age-appropriate content tailored to a child’s developmental stage. This personalized curation of interest-based content can enhance learning outcomes and produce a beneficial online experience for children. However, while being exposed to age-appropriate content may not harm the child viewers, it can still cause problems related to content addiction.

‘Protected Development’

Children are generally known to be naïve and impressionable, meaning full access to the internet can be harmful for their development, as they may take anything they see at face value. The American Psychological Association has said that, “[d]uring adolescent development, brain regions associated with the desire for attention, feedback, and reinforcement from peers become more sensitive. Meanwhile, the brain regions involved in self-control have not fully matured.” Social media algorithms play a pivotal role in shaping the content children can encounter by prioritizing engagement metrics such as likes, comments, and shares. In doing this, social media sites create an almost gamified experience that encourages frequent and prolonged use amongst children. Children also have a tendency to intensely fixate on certain activities, interests, or characters during their early development, further increasing the chances of being addicted to their feed.

Additionally, the addictive nature of social media algorithms poses significant risks to children’s physical and mental well-being. The constant stream of personalized content, notifications, and variable rewards can contribute to excessive screen time, impacting sleep patterns and physical health. Likewise, the competitive nature of engagement metrics may result in a sense of inadequacy or social pressure among young users, leading to issues such as cyberbullying, depression, low self-esteem, and anxiety.

Stop Addictive Feeds Exploitation (SAFE) for Kids

The New York legislature has spotted the anemic state of internet protection for children and identified the rising mental health issues relating to social media in the youth.  Announced their intentions at passing laws to better protect kids online. The Stop Addictive Feeds Exploitation (SAFE) for Kids Act is aimed explicitly at social media companies and their feed-bolstering algorithms. The SAFE for Kids Act is intended to “protect the mental health of children from addictive feeds used by social media platforms, and from disrupted sleep due to night-time use of social media.”

Section 1501 of The Act would essentially prohibit operators of social media sites from providing addictive, algorithm-based feeds to minors without first obtaining parental permission. Instead the default feed on the program would be a chronologically sorted main timeline, one more popular in the infancy of social media sites. Section 1502 of The Act would also require social media platforms to obtain parental consent before allowing notifications between the hours of 12:00 AM and 6:00 AM and creates an avenue for opting out of access to the platform between the same hours. The Act would also provide a limit on the overall number of hours a minor can spend on a social media platform. Additionally, the Act would authorize the Office of the Attorney General to bring a legal action to enjoin or seek damages/civil penalties of up to $5,000 per violation and allow any parent/guardian of a covered minor to sue for damages of up to $5,000 per user per incident, or actual damages, whichever is greater.

A sign of the times

The Act accurately represents the growing concerns of the public in its justification section, where it details many of the above referenced problems with social media algorithms and the State’s role in curtailing the well-known negative effects they can have on a protected class. The New York legislature has identified the problems that social media addiction can present, and have taken necessary steps in an attempt to curtail it.

Social media algorithms will always play an intricate role in shaping user experiences. However, their addictive nature should rightfully subject them to scrutiny, especially in their effects among children. While social media algorithms offer personalized content and can produce constructive experiences, their addictive nature poses significant risks, prompting legislative responses like the Stop Addictive Feeds Exploitation (SAFE) for Kids Act.  Considering the profound impact of these algorithms on young users’ physical and mental well-being, a critical question arises: How can we effectively balance the benefits of algorithm-driven engagement with the importance of protecting children from potential harm in the ever evolving digital landscape? The SAFE for Kids Act is a step in the right direction, inspiring critical reflection on the broader responsibility of parents and regulatory bodies to cultivate a digital environment that nurtures healthy online experiences for the next generation.

 

Don’t Talk to Strangers! But if it’s Online, it’s Okay?

It is 2010.  You are in middle school and your parents let your best friend come over on a Friday night.  You gossip, talk about crushes, and go on all social media sites.  You decide to try the latest one, Omegle.  You automatically get paired with a stranger to talk to and video chat with.  You speak to a few random people, and then, with the next click, a stranger’s genitalia are on your screen.

Stranger Danger

Omegle is a free video-chatting social media platform.  Its primary function has become meeting new people and arranging “online sexual rendezvous.”  Registration is not required.  Omegle randomly pairs users for one-on-one video sessions.  These sessions are anonymous, and you can skip to a new person at any time.  Although there is a large warning on the home screen saying “you must be 18 or older to use Omegle”, no parental controls are available through the platform.  Should you want to install any parental controls, you must use a separate commercial program.

While the platform’s community guidelines illustrate the “dos and don’ts” of the site, it seems questionable that the platform can monitor millions of users, especially when users are not required to sign up, or to agree to any of Omegle’s terms and conditions.  It, therefore, seems that this site could harbor online predators, raising quite a few issues.

One recent case surrounding Omegle involved a pre-teen who was sexually abused, harassed, and blackmailed into sending a sexual predator obscene content.  In A.M. v. Omegle.com LLC, the open nature of Omegle ended up matching an 11-year-old girl with a sexual predator in his late thirties.  Being easily susceptible, he forced the 11-year-old into sending pornographic images and videos of herself, perform for him and other predators, and recruit other minors.  This predator was able to continue this horrific crime for three years by threatening to release these videos, pictures, and additional content publicly.  The 11-year-old plaintiff sued Omegle on two general claims of platform liability through Section 230, but only one claim was able to break through the law.

Unlimited Immunity Cards!

Under 47 U.S.C. § 230 (Section 230), social media platforms are immune from liability for content posted by third parties.  As part of the Communications Decency Act of 1996, Section 230 provides almost full protection against lawsuits for social media companies since no platform is seen as a publisher or speaker of user-generated content posted on the site.  Section 230 has gone so far to say that Google and Twitter were immune from liability for claims that their platforms were used to aid terrorist activities.  In May of 2023, these cases moved up to the Supreme Court.  Although the court declined to rule for the Google case, they ruled on the Twitter case.  Google was found not liable for the claim that they stimulated the growth of ISIS through targeted recommendations and inspired an attack that killed an American student.  Twitter was immune for the claim that the platform aided and abetted a terrorist group to raise funds and recruit members for a terrorist attack.

Wiping the Slate

In February of 2023, the District Court in Oregon for the Portland Division found that Section 230 immunity did not apply to Omegle in a products liability claim, and the platform was held liable for these predatory actions committed by the third party on the site.  By side-stepping the third-party freedom of speech issue that comes with Section 230 immunity for an online publisher, the district court found Omegle responsible under the Plaintiff’s products liability claim, which targeted the platforms’ defective design, defective warning, negligent design, and failure to warn.

Three prongs need to be proved to preclude a platform from liability under Section 230:

  1. A provider of an interactive site,
  2. Whom is sought to be treated as a publisher or speaker, and
  3. For information provided by a third-party.

It is clear that Omegle is an interactive site that fits into the definition provided by Section 230.  The issue then falls on the second and third prongs: if the cause of action treated Omegle as the speaker of third-party content.  The sole function of randomly pairing strangers causes the foreseen danger of pairing a minor with an adult. Shown in the present case, “the function occurs before the content occurs.” By designing the platform negligently and with knowing disregard for the possibility of harm, the court ultimately concluded that the liability of the platform’s function does not pertain to third-party published content and that the claim targeted specific functions rather than users’ speech on the platform.  Section 230 immunity did not apply for this first claim and Omegle was held liable.

Not MY Speech

The plaintiff’s last claim dealing with immunity under Section 230 is that Omegle negligently failed to apply reasonable precautions to provide a safe platform.  There was a foreseeable risk of harm when marketing the service to children and adults and randomly pairing them.  Unlike the products liability claim, the negligence claim was twofold: the function of matching people and publishing their communications to each other, both of which fall directly into Section 230’s immunity domain.  The Oregon District Court drew a distinct line between the two claims, so although Omegle was not liable under Section 230 here through negligent service, they were liable through products liability.

If You Cannot Get In Through the Front Door, Try the Back Door!

For almost 30 years, social media platforms have been nearly immune from liability pertaining to Section 230 issues.  In the last few years, with the growth of technology on these platforms, judges have been trying to find loopholes in the law to hold companies liable.  A.M. v. Omegle has just moved through the district court level.  If appealed, it will be an interesting case to follow and see if the ruling will stand or be overruled in conjunction with the other cases that have been decided.  

How do you think a higher court will rule on issues like these?

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.

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. 

#ad : The Rise of Social Media Influencer Marketing

 

 

 

 

 

 

 

 

#Ad : The rise of social media influence marketing.

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

Imagine this:

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

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

 

The times have changed, quickly.

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

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

 

What the heck is an “ Influencer”?

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

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

 

Here come the #ads.

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

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

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

 

 

 

 

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.

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