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.

S744The 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 1291The 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.

 

From Hashtags to Hazards: Dangerous Diets and Digital Doses

Dieting, weight loss, and the need to be skinny has been prevalent in society from as early as the 19th century. People will find and try anything these days, healthy or not, to lose weight fast: diet pills, eating plans, radiofrequency lasering, you name it. People will go through such lengths to lose weight the wrong way – not exercising, not eating right, and not getting enough sleep. The emergence of social media has only compounded these issues. Social media creates pathways leading to social comparison, thin/fit ideal internalization, and self-objectification.

Type 2 diabetes is often associated with obesity and occurs when the body does not produce enough insulin, or does not react to insulin, and therefore cannot function properly. This disease is usually diagnosed in people ages 45-64 who are physically inactive and not leading a healthy lifestyle. In the early 2000s, pharmaceutical companies were looking for an easy solution to lower blood sugar to manage this disease. Enter: Ozempic.

Drugmaker Novo Nordisk introduced Ozempic in 2017 when the Food and Drug Administration authorized its use for adults with type 2 diabetes. It started as a relatively mundane drug with a straightforward goal: to help individuals manage their blood sugar levels and lead healthier lives. The weekly injection was designed to simulate insulin production and suppress glucagon release, ultimately leading to a rise in hormone levels that go to your brain, telling it that the stomach is full. It also increases the time it takes for ingested food to leave the body, slowing digestion. Originally, the marketing for Ozempic only targeted adults with type 2 diabetes and was to be used with diet and exercise as a healthy way to lower blood sugar.

Turning an Unintended Outcome into a Marketing Advantage

Soon after Ozempic hit the market, surveys and studies came out that showed those who used the drug also lost weight. People who took it lost an average of 14.9% of their body weight in six months of use. The unintended weight loss from Ozempic would have usually been listed as a side effect for the medication. Now having an additional benefit of losing weight, ads for Ozempic included it along with the diabetes usage. Marketers knew their audience and this new marketing campaign attracted a large group of people who wanted to lose weight. They tapped into this market to increase sales and revenue for the drug, which continues to be very successful.

In recent years, the pharmaceutical industry has witnessed a dramatic shift in how drugs are marketed, perceived, and consumed. This is largely due to the power of social media platforms and its influence on users. The allure of social media’s vast audience, the power of user-generated content, and its complex algorithms turned Ozempic into a trending topic. In the last year, social media helped Ozempic become widely known that the drug could double as a potential solution for weight loss. The drug went viral as hashtags and posts illuminated Ozempic as a cheat to losing weight, and losing weight fast. No diet or exercise needed. Individuals, not just those diagnosed with diabetes, were captivated by this prospect, and sought after Ozempic.

The new social media sensation garnered attention on platforms like TikTok, Instagram, and YouTube, with users, influencers, and celebrities sharing their experiences, before-and-after photos, and purported success stories. The influx of advertisements and users mentioning Ozempic increased the drug’s sales by 111% since last year. Elon Musk credited fasting, no tasty food, and Ozempic/ Wegovy (a drug very similar to Ozempic), as the reasons he shed almost 30 pounds. Other celebrities who have taken the drug, and have been vocal about it, include Amy Schumer, Chelsea Handler, Charles Barkley, Sharon Osborne, Tracy Morgan, and many more who are known to not have type 2 diabetes.

Rewards Turn to Consequences

Now being marketed almost strictly as a weight loss drug from different vendors, the viral run on Ozempic has led to worldwide shortages, doctors over-prescribing the drug, and many different legal issues. The blowup of Ozempic online was at least in part fueled by people who wanted to lose weight but who did not have any medical reasons to take it. The scarcity of Ozempic, coupled with the high demand, poses a threat to the health of individuals with type 2 diabetes who depend on this medication. As a result of this issue, Novo Nordisk paused advertisements for Ozempic in May of 2023. However, most of the ads on social media were not coming from the drugmaker, and instead were coming from online pharmacies and smaller marketers. These marketers attract vulnerable users who are seeking that quick fix to weight loss. While pharmaceutical companies can be held liable if their advertisements are proven to be false and/or misleading, the social media platforms are not liable under Section 230.

Users were not walking; they were running to doctors begging for Ozempic, even users who are not overweight, let alone have diabetes. It is very easy to get a prescription for Ozempic since only an online telehealth appointment is needed. Medicines and drugs that are approved for specific uses in the United States can be prescribed off-label for any use. Off-label use is when doctors prescribe medications for purposes not approved by the Food and Drug Administration. Doctors were prescribing Ozempic for patients that did not have type 2 diabetes and did not need it. At this time, the FDA has not approved Ozempic for the sole purpose of weight loss (yet). Doctors have gotten around this by prescribing other weight loss drugs such as Wegovy. Even though off-label use is not illegal, it still raises a slew of legal issues.

Off-Label Dangers and Legal Showdowns

To this day, there have not been adequate studies of how Ozempic works for people without diabetes and there may not be enough evidence to support using the drug for people who are not diabetic. Off-label use of Ozempic can lead to serious side effects. In August of 2023, after being prescribed Ozempic for weight management, a Louisiana resident claimed to have developed gastroparesis and argued that Novo Nordisk failed in their duty to adequately warn about potential adverse side effects associated with the drug. Gastroparesis is a condition that impacts the normal movement of muscles in the stomach. Less than a month after this suit was filed, the FDA and Novo Nordisk added a warning for Ozempic that it could cause intestinal blockage. This case is still in its early stages, but more and more people are coming forward and hiring attorneys for this condition in relation to taking Ozempic. A class action or multi-district litigation is predicted to occur in these cases.

Another potential legal implication of the off-label use of Ozempic going viral is medical malpractice and the potential for mass claims against doctors and manufacturers for prescribing the weight loss drug without proper medical justification. Social media users who see advertisements on platforms and want to lose weight are not asking doctors to prescribe Ozempic to them; they are begging. The drug manufacturers aren’t providing comprehensive information to patients about potential adverse reactions and are actively promoting the use of these drugs among individuals who may receive only minimal or no long-term benefits from them.

Predicting the Future of Ozempic

To better understand the Ozempic situation, it is valuable to draw parallels with the OxyContin opioid epidemic. OxyContin was first introduced in 1996 and is a powerful narcotic designed for the management of severe pain. However, as a result of over-promotion and improper sales tactics, it was overprescribed and led to widespread abuse, addiction overdose and death. The similarities between the issues surrounding the two drugs include:

  • Over-prescription– in both cases, doctors and manufacturers have played a pivotal role in the over-prescription of the medications. OxyContin was prescribed for chronic pain, a use that went beyond its intended purpose, while Ozempic was prescribed off-label for weight loss.
  • Patient demand– in both cases, patient demand and pressure have played a significant role in prescription practices. Patients seeking quick and easy solutions are more likely to want and receive medications that may not be appropriate for their condition and health.
  • Pharmaceutical company responsibility– Purdue Pharma, makers of OxyContin, faced, and continue to face, lawsuits for aggressively marketing the drug. Although no lawsuits have been filed against Ozempic yet for this, the responsibility of pharmaceutical companies in promoting medications beyond their FDA-approved uses could show a common thread between both drugs.

The one key difference between the OxyContin epidemic and the issues with Ozempic today is that in the early 2000s, social media sites were not as prolific. The advent of social media amplifies the speed and scale at which information, whether accurate or not, spreads. The contagious nature of user-generated content, testimonials, and before-and-after narratives on platforms has the potential to magnify the off-label promotion and demand for Ozempic as a weight loss solution. This can fuel an unwarranted surge in prescriptions without proper medical assessment, potentially leading to increased risks, adverse effects, and challenges in regulating the medication’s use. The ease with which information circulates on social media might intensify the scope and speed of the ‘Ozempic epidemic,’ raising concerns about patient safety and regulatory control.

Where Does the Liability Land?

The story of Ozempic’s transformation from a diabetes medication to a weight loss sensation driven by social media is a compelling example of how the digital age can shape public perception and lead to a vast number of legal issues. If Section 230 is amended and sets forth certain parameters in which social media sites can be liable, could platforms be held accountable for the shortage of the drug due to social media’s contributions of Ozempic’s popularity? Could the platforms be responsible for the possible increase in body image issues and eating disorders associated with the trend to be skinny?

Sharing is NOT Always Caring

Where There’s Good, There’s Bad

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

Common Issues

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

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

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

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

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

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

Share & Beware: The Law

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

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

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

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

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

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

New York is Protecting Your Privacy

TAKING A STANCE ON DATA PRIVACY LAW

The digital age has brought with it unprecedented complexity surrounding personal data and the need for comprehensive data legislation. Recognizing this gap in legislative protection, New York has introduced the New York Privacy Act (NYPA), and the Stop Addictive Feeds Exploitation (SAFE) For Kids Act, two comprehensive initiatives designed to better document and safeguard personal data from the consumer side of data collection transactions. New York is taking a stand to protect consumers and children from the harms of data harvesting.

Currently under consideration in the Standing Committee on Consumer Affairs And Protection, chaired by Assemblywoman Nily Rozic, the New York Privacy Act was introduced as “An Act to amend the general business law, in relation to the management and oversight of personal data.” The NYPA was sponsored by State Senator Kevin Thomas and closely resembles the California Consumer Privacy Act (CCPA), which was finalized in 2019. In passing the NYPA, New York would become just the 12th state to adopt a comprehensive data privacy law protecting state residents.

DOING IT FOR THE DOLLAR

Companies buy and sell millions of user’s sensitive personal data in the pursuit of boosting profits. By purchasing personal user data from social media sites, web browsers, and other applications, advertisement companies can predict and drive trends that will increase product sales among different target groups.

Social media companies are notorious for selling user data to data collection companies, things such as your: name, phone number, payment information, email address, stored videos and photos, photo and file metadata, IP address, networks and connections, messages, videos watched, advertisement interactions, and sensor data, as well as time, frequency, and duration of activity on the site. The NYPA targets businesses like these by regulating legal persons that conduct business in the state of New York, or who produce products and services aimed at residents of New York. The entity that stands to be regulated must:

  • (a) have annual gross revenue of twenty-five million dollars or more;
  • (b) control or process personal data of fifty thousand consumers or more;
  • or (c) derive over fifty percent of gross revenue from the sale of personal data.

The NYPA does more for residents of New York because it places the consumer first, as the Act is not restricted to regulating businesses operating within New York but encompasses every resident of New York State who may be subject to targeted data collection, an immense step forward in giving consumers control over their digital footprint.

MORE RIGHTS, LESS FRIGHT

The NYPA works by granting all New Yorkers additional rights regarding how their data is maintained by controllers to which the Act applies. The comprehensive rights granted to New York consumers include the right to notice, opt out, consent, portability, correct, and delete personal information. The right to notice requires each controller provide a conspicuous and readily available notice statement describing the consumer’s rights, indicating the categories of personal data the controller will be collecting, where its collected from, and what it may be used for. The right to opt out includes allowing for consumers to opt out of processing their personal data for the purposes of targeted advertising, the sale of their personal data, and for profiling purposes. This gives the consumer an advantage when browsing sites and using apps, as they will be duly informed of exactly what information they are giving up when online.

While all the rights included in the NYPA are groundbreaking for the New York consumer, the right to consent to sensitive data collection and the right to delete data cannot be understated. The right to consent requires controllers to conspicuously ask for express consent to collect sensitive personal data. It also contains a zero-discrimination clause to protect consumers who do not give controllers express consent to use their personal data. The right to delete requires controllers to delete any or all of a consumer’s personal data upon request, demanding controllers delete said data within 45 days of receiving the request. These two clauses alone can do more for New Yorker’s digital privacy rights than ever before, allowing for complete control over who may access and keep sensitive personal data.

BUILDING A SAFER FUTURE

Following the early success of the NYPA, New York announced their comprehensive plan to better protect children from the harms of social media algorithms, which are some of the main drivers of personal data collection. Governor Kathy Hochul, State Senator Andrew Gounardes, and Assemblywoman Nily Rozic recently proposed the Stop Addictive Feeds Exploitation (SAFE) For Kids Act, directly targeting social media sites and their algorithms. It has long been suspected that social media usage contributes to worsening mental health conditions in the United States, especially among youths. The SAFE For Kids Act seeks to require parental consent for children to have access to social media feeds that use algorithms to boost usage.

On top of selling user data, social media sites like Facebook, YouTube, and X/Twitter also use carefully constructed algorithms to push content that the user has expressed interest in, usually based on the profiles they click on or the posts they ‘like’. Social media sites feed user data to algorithms they’ve designed to promote content that will keep the user engaged for longer, which exposes the user to more advertisements and produces more revenue.

Children, however, are particularly susceptible to these algorithms, and depending on the posts they view, can be exposed to harmful images or content that can have serious consequences for their mental health. Social media algorithms can show children things they are not meant to see, regardless of their naiveté and blind trust, traits that are not exactly cohesive with internet use. Distressing posts or controversial images could be plastered across children’s feeds if the algorithm determines it would drive better engagement by putting them there. Under the SAFE For Kids Act, without parental consent, children on social media sites would see their feed in chronological order, and only see posts from users they ‘follow’ on the platform. This change would completely alter the way platforms treat accounts associated with children, ensuring they are not exposed to content they don’t seek out themselves. This legislation would build upon the foundations established by the NYPA, opening the door to even further regulations that could increase protections for the average consumer and more importantly, for the average child online.

New Yorkers: If you have ever spent time on the internet, your personal data is out there, but now you have the power to protect it.

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.

THE SCHEME BEHIND AN ILLEGAL STREAM

FOLLOW THE STREAM TOWARDS A FELONY

The Protecting Lawful Streaming Act makes it a felony to engage in large-scale streaming of copyright material. The introduction of this law took place on December 10th, 2020. The law pertains to the increased concern surrounding live audio and video streaming in recent years. Specifically, such streaming has transformed society and become one of the most influential ways society chooses to enjoy various forms of content. Yet, the growth of legitimate streaming services has continuously been accompanied and disturbed by unlawful streaming of copyright materials. Initially, the illegal streaming of copyright material was only a misdemeanor until the Protecting Lawful Streaming Act became a part of America’s newest addition to the law.

Under the Protecting Lawful Streaming Act, a person must act:

  1. Willfully.
  2. For purposes of commercial advantage or private financial gain.
  3. Offer or provide to the public a digital transmission service.

ALL FOR ONE, ONE FOR ALL

The law’s enactment incentivizes those who indulge in hosting illegal streams subjects them to severe criminal penalties. Accordingly, anyone who hosts an illegal stream that not only infringes upon copyright material but also obtains an economic benefit will now face felony charges. Many fail to recognize that while the individual responsible for hosting the illegal stream faces criminal charges, any individual who merely partakes in viewing this infringement does not technically violate any criminal law. Therefore, illegal streams that host hundreds and even thousands of viewers allow for no criminal action to be taken or even threatened to all these spectators. Instead, the focus is entirely on the host of this illegal stream.

PLATFORMS ENGINEERING IS PERFECTLY IMPERFECT

The question then becomes, what does social media do with illegal streaming? For starters, social media platforms serve as one of, if not the most, influential ways illegal streams reach society. Social media platform designs focus on spreading information. They not only spread information but essentially take information and provide the capability to have it worldwide within seconds. As such, these platform’s engineering do precisely what illegal streaming hosts want. That is to expose these streams to millions of individuals who may indulge and use copyright material for their benefit. Social media’s capabilities of utilizing hashtags, likes, shares, and other methods of expansion through social media allow hosts to capitalize on these platform’s designs to take advantage for their own personal and financial gain.

NOT MY MESS, NOT MY PROBLEM

Social media platforms are not liable for copyright material exposure on their platforms. According to the Digital Millennium Copyright Act, the only requirement is that these platforms must take prompt action when contacted by the rights holders. However, the statistics have shown thus far that social media platforms fail to take the initiative and are generally unwilling to address this ongoing concern. The argument on behalf of social media platforms is that the duty is not on their behalf but on the rights holders to report an infringement. With this belief, social media platforms could take a more significant initiative to address this concern of illegal streaming. While social media platforms have at least some implementations to help prevent infringement of owner’s work, the system is flawed, with many unresolved areas of concern. Current measures in place by themselves fail to provide reassurance that they can protect the content of the actual owner from being exploited for the financial benefit of illegal streaming hosts around the world. 

MORE MONEY, MORE PROBLEMS

The question then becomes, how many illegal streaming services impact people? Major entertainment networks such as the NFL, NBA, and UFC are just a few examples of illegal streaming threatening their businesses’ most critical revenue stream. That being the television viewership. Not only this but even movie and non-sport television programs are reported to have lost billions of dollars to the hands of illegal streaming. Thus, by enacting the Protecting Lawful Streaming Act, the goal is to deter harmful criminal activity and simultaneously protect the rights of creators and copyright owners.

Furthermore, the individual people would least expect to be harmed by illegal streaming is also in jeopardy. That being themselves! Illegal streams cause various risks of malicious software that can infect one’s device. This exposure puts individuals’ personal information at risk. It is subject to several casualties, such as identity fraud, financial loss, and permanent damage to devices that watch these illegal streaming services. 

WHAT’S MINE IS YOURS

Society must recognize and address how individuals can counteract illegal streaming legally yet unfairly. For instance, an individual who legally purchases a pay-per-view event and then live streams this on their social media for others to also spectate. Someone can lawfully buy the stream and not be subject to being host to an illegal stream. Yet, the same issue arises. The owners of this content are stuck with no resolution and lose out on potential revenue. Rather than these individuals all purchasing the content for themselves, one is used as a sacrifice while the others reap the same benefit without costing a dime. The same scenario can arise where individuals gather in one home to watch a pay-per-view or a movie on demand. This conduct is not illegal, but it negates the potential revenue these industries may obtain. Such a solution was, is, and consistently will be recognized as legal activity.

AN ISSUE, BUT NOT AN ISSUE WORTH SOLVING

Even streaming platforms like Netflix fail to take any measures regarding not necessarily illegally streaming its content but sharing passwords for one account. Although such conduct can be subject to civil liability in a breach of its contractual terms or even criminal liability if fraud is determined, these platforms fail to take proper measures against this behavior. Ultimately, moving forward on these actions would be too costly and can result in losing viewership through this sort of conduct.

Through these findings, it’s clear that illegal streaming has and continues to take advantage of the actual copyright owners of this material. The Protecting Lawful Streaming Act was society’s most recent attempt to minimize this ongoing issue through an effort to increase the criminal penalty and deter such conduct. Yet, based on the inability to identify and diminish these illegal streams on social media, many continue to get away with this behavior daily. The legal loopholes discussed above prove that entertainment industries may never see the revenue stream they anticipate. Only time will tell how society responds to this predicament and whether some law will address it in the foreseeable future. If the law were to hold higher standards for social media platforms to take accountability for this conduct, would it make a difference? Even so, would the minimization of social media’s influence on the spread of illegal streams even have a lasting impact? 

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?

 

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