children – Social Media Legality

International Regulation of Social Media- A Survey

The debate on regulation of social media in the United States is a heated one. Lawmakers, fueled by both theoretical concerns and specific incidences, have proposed and debated legislation to regulate social media platforms, thus far – unsuccessfully. Bills have failed both because of constitutional concerns and lack of appetite. Sen. Amy Klobuchar said the tech lobby is so powerful that bills with “strong, bipartisan support” can fall apart “within 24 hours.

Recently, the Biden administration was prohibited from asking sites to remove misinformation content, with the Federal Appeals Court ruling that doing so was a violation of the first amendment. Additionally, Section 230 is alive and well, shielding media platforms from liability for pretty much anything posted on their sites. This is reflected in the recent cases Twitter, Inc. v. Taamneh and Gonzalez v. Google.

Elsewhere in the world, legislation designed to regulate social media is proposed, approved, awaiting and already in process of implementation. Unlike the US, Europe, the UK and others do not have the high First Amendment bar to overcome, making regulation a realistic possibility. A survey of active regulation and proposed regulation shows determination and promise in tackling some of the greatest concerns that social media poses.

Legislation worldwide has been designed to combat a variety of harms and threats, with each country and legislative body disclosing their most important concerns. The harms range from protecting children from viewing inappropriate content to establishing a level playing field to foster innovation, growth, and competitiveness in business. Most regulation places an onus on social media companies to be vigilant, police their own platforms, and remove content that violates the law. Heavy fines, up to 10% of the platform’s gross global profit would be assessed in fines if violated. A survey of the proposed and adopted legislation regulating social media shows progress toward a goal of a happier and safer online existence for all.

In the European Union

The European Union (EU) has elected a regulatory “one-two punch” to both control anticompetitive behavior of the platforms and to stop misinformation in its tracks.

The Digital Services Act (DSA) and the Digital Market Act (DMA) form a single set of rules that apply across the whole EU. They have two main goals: to create a safer digital space and to establish a level playing field to foster innovation, growth, and competitiveness for smaller and new business.

The DSA, passed in September 2023 and to be implemented in the new year, is designed to address social media’s harms to society. Under the DSA, platforms as well as providers of digital services will be required to more aggressively police their platforms. The DSA imposes reporting and monitoring obligations for illegal content and misinformation. Digital service providers, including social media sites, will be compelled to set up new policies and procedures to identify and remove flagged hate speech, terrorist propaganda and other “material defined as illegal by countries within the European Union.” This includes a duty to monitor and report, mandating internal audits and reporting on them. The DSA also requires platforms to disclose how their services amplify divisive content and stop targeting online ads based on a person’s ethnicity, religion or sexual orientation. Using children’s data for algorithms and advertising is also strictly prohibited. Social media giants are held to an even higher standard under the DSA. Very Large online platforms are held to an even higher standard. Platforms like Meta, X, and TikTok will be compelled to analyze the systemic risks that they can create including dissemination of illegal content, effect on fundamental rights, on elections and electoral processes, and gender-based violence or mental health trends.

Penalties for failure to adhere to the DSA are steep. Violation could be assessed with fines of up to 6% of a platform’s global profits per annum.

The DMA, which passed earlier this year, is meant to protect businesses from anticompetitive behavior by platforms, which negatively affects small businesses. Most of the regulation is aimed at creating a level playing field for businesses using platforms, and to combat the grip of platforms over app stores, advertising, and online shopping. Under the DMA, a platform cannot treat services and products offered by the platform better than those offered by a third party on the platform. They must give users access to the data they collect from the third party and can no longer track users beyond the platform’s own site for use in advertising or prevent third parties from directing users to another site from the platform.

Penalties for violation could soar into the billions. Violators can be fined for up to 10% of the platform’s global profits per annum, and up to 20% for repeat offenders.

To enforce the new laws, the EU plans to form a unit of 240 officers dedicated to the purpose.

United Kingdom

Kyiv, Ukraine – September 5, 2019: A paper cubes collection with printed logos of world-famous social networks and online messengers, such as Facebook, Instagram, YouTube, Telegram and others.

In September 2023, Parliament approved the Online Safety Bill. The bill is designed to prevent children from consuming harmful information online. Under the bill, platforms must act rapidly to remove illegal or harmful content from their sites. They must implement more transparent procedures and enforce them. They must implement and enforce age-checking measures to ensure children are not seeing inappropriate content. Platforms must also provide parents accessible ways to report problems as they arise, and to allow parents the ability to make their children’s accounts more secure using parental controls. They also must analyze and publish risk assessments. Critically, the law places a legal responsibility on social media platforms to enforce the promises they make to users when they sign up, through the platform’s terms and conditions. In effect, they are legally bound to enforce their terms and conditions.

Punishment for violations could exceed fines of 18 million Pounds, or 10% of their global annual revenue, whichever is higher.

Australia

Australia also recently proposed legislation aimed at regulating and removing misinformation and illegal content, particularly for the benefit of children. The law would compel platforms to remove “cyber-abusive” information within 24 hours. This regulation would also allow the regulatory body in charge there, the Australian Competition and Consumer Commission (ACCC) and the Australian Association of National Advertisers (AANA), to obtain information and documents from digital platforms relating to disinformation and misinformation.

Indonesia

Indonesia centers its newest proposed legislation on its concern for the local markets and local vendors. Last month, the President of Indonesia announced that the Trade Ministry would be issuing regulation that would ban e-commerce on social media platforms. No specific platforms were mentioned, but TikTok is likely one of the targets. Officials have claimed that e-commerce sellers using predatory pricing on social media platforms are threatening local markets in Indonesia, with some officials specifically citing TikTok. The proposed bill prohibits direct transactions on social media sites, but vendors can still advertise products on social media. No word yet on how or when implementation would commence.

Efforts from around the globe to regulate social media and digital platforms are full of promise. Implementation and enforcement will be a challenge, as the digital world expands and mutates continually, and opposition to change by social media platforms is sure to follow. Here in the United States, there is much we could borrow and implement. From the comfortable position of early and interested observer, let’s see.

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:

A provider of an interactive site,
Whom is sought to be treated as a publisher or speaker, and
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?

Social Media: a pedophile’s digital playground.

A few years ago, as I got lost in the wormhole that is YouTube, I stumbled upon a family channel, “The ACE Family.” They had posted a cute video where the mom was playing a prank on her boyfriend by dressing their infant daughter in a cute and tiny crochet bikini. I didn’t think much of it at the time as it seemed innocent and cute, but then I pondered and thought about it. I stumbled on this video without any malintent, but how easy would it be for someone looking for content like this with other disgusting intent.

When you Google “Social media child pornography,” you get many articles from 2019. In 2019 a YouTuber using the name “MattsWhatItIs” posted a YouTube video titled “YouTube is Facilitating the Sexual Exploitation of Children, and it’s Being Monetized(2019)”; this video has 4,305,097 views to date and has not been removed from the platform. The author of the video discusses a potential child pornography ring on YouTube that was being facilitated due to a glitch in the algorithm. He demonstrates how with a brand-new account on a VPN, all it takes is two clicks to end up in this ring. The search started with a “Bikini Haul” search. After two clicks on the recommended videos section, he stumbles upon an innocent-looking homemade video. The video looks innocent, but he scrolls down to the comments to expose the dark side. Multiple random account comment time stamps, those timestamps are linked to slots on the video where the children are in comprising implicit sexual positions. The most disturbing part is that the algorithm glitches once you enter the wormhole, and you get stuck on these “child pornography” videos. Following the vast attention this video received, YouTube has created an algorithm that is supposed to catch this predatory behavior; when the video was posted, it didn’t seem to be doing much.

YouTube has since implemented a “Child Safety Policy,” which details all the content which the social media platform has aimed to protect. It also includes recommended steps for parents or agents posting content with children being the focus. “To protect minors on YouTube, content that doesn’t violate our policies but features children may have some features disabled at both the channel and video level. These features may include:

Comments
Live chat
Live streaming
Video recommendations (how and when your video is recommended)
Community posts”

Today when you look up the news on this topic, you don’t find much. There are forums and such exposing the many methods these predators use to get around the algorithms set up by platforms to detect their activity. Many predators leave links to child pornography in the comments section of specific videos. Others used generic terms with the initials “C.P.,” a common abbreviation for “child pornography,” and codes like “caldo de pollo,” which means “chicken soup” in Spanish. Many dedicated and concerned parents have formed online communities that scour the Internet for this disgusting content and report it to social media platforms. Online communities scan the Internet for this activity and report it, but why haven’t social media platforms created departments for this issue? Most technology companies use automated tools to detect images and videos that law enforcement has already categorized as child sexual exploitation material. Still, they struggle to identify new, previously unknown material and rely heavily on user reports.

The Child Rescue Coalition has created the “Child Protection System Software.” This tool has a growing database of more than a million hashed images and videos, which it uses to find computers that have downloaded them. The software can track I.P. addresses, which are shared by people connected to the same Wi-Fi network and individual devices. According to the Child Rescue Coalition, the system can follow widgets even if the owners move or use virtual private networks or VPNs to mask the I.P. addresses. Last year they expressed interest in partnering with social media platforms to combine resources to crack down on child pornography. Unfortunately, some are against this as it would allow social media companies access to this unregulated database of suspicious I.P. addresses. Thankfully, many law enforcement departments have partnered up and used this software and as the president of the Child Rescue Coalition said: “Our system is not open-and-shut evidence of a case. It’s for probable cause.”

The United States Department of Justice has created a “Citizen’s Guide to U.S. Federal Law on Child Pornography.” The first line on this page reads, “Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law.” Commonly federal jurisdiction is applied if the child pornography offense occurred in interstate or foreign commerce. In today’s digital era, federal law almost always applies when the Internet is used to commit child pornography offenses. The United States has implemented multiple laws that define child pornography and what constitutes a crime related to child pornography.

Whose job is it to protect children from these predators? Should social media have to regulate this? Should parents be held responsible for contributing to the distribution of these media?

“Unfortunately, we’ve also seen a historic rise in the distribution of child pornography, in the number of images being shared online, and in the level of violence associated with child exploitation and sexual abuse crimes. Tragically, the only place we’ve seen a decrease is in the age of victims.

This is – quite simply – unacceptable.”

-Attorney General Eric Holder Jr. speaks at the National Strategy Conference on Combating Child Exploitation in San Jose, California, May 19, 2011.

Can Social Media Be Regulated?

In 1996 Congress passed what is known as Section 230 of the Communications Decency Act (CDA) which provides immunity to website publishers for third-party content posted on their websites. The CDA holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This Act passed in 1996, was created in a different time and era, one that could hardly envision how fast the internet would grow in the coming years. In 1996, social media for instance consisted of a little-known social media website called Bolt, the idea of a global world wide web, was still very much in its infancy. The internet was still largely based on dial-up technology, and the government was looking to expand the reach of the internet. This Act is what laid the foundation for the explosion of Social Media, E-commerce, and a society that has grown tethered to the internet.

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

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

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

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

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

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

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

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

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

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

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

Tag: children

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