Tag: Internet

Mental Health Advertisements on #TikTok

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

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

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

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

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

ADHD content is popular on TikTok, as America faces an Adderall shortage - Vox

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

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

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

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

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

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

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

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

Is it HIGH TIME we allow Cannabis Content on Social Media?

 

Is it HIGHT TIME we allow Cannabis Content on Social Media?

The Cannabis Industry is Growing like a Weed

Social media provides a relationship between consumers and their favorite brands. Just about every company has a social media presence to advertise its products and grow its brand. Large companies command the advertising market, but smaller companies and one-person startups have their place too. The opportunity to expand your brand using social media is limitless to just about everyone. Except for the cannabis industry. With the developing struggle between social media companies and the politics of cannabis, comes an onslaught of problems facing the modern cannabis market. With recreational marijuana use legal in 21 states and Washington, D.C., and medical marijuana legal in 38 states, it may be time for this community to join the social media metaverse.

We know now that algorithms determine how many followers on a platform see a business’ content, whether or not the content is permitted, and whether the post or the user should be deleted. The legal cannabis industry has found itself in a similar struggle to legislators with social media giants ( like Facebook, Twitter, and Instagram) for increased transparency about their internal processes for filtering information, banning users, and moderating its platform. Mainstream cannabis businesses have been prevented from making their presence known on social media in the past, but legitimate businesses are being placed in a box with illicit drug users and prevented from advertising on public social media sites. The Legal cannabis industry is expected to be worth over $60 billion by 2024, and support for federal legalization is at an all-time high (68%). Now more than ever, brands are fighting for higher visibility amongst cannabis consumers.

Recent Legislation Could Open the Door for Cannabis

The question remains, whether the legal cannabis businesses have a place in the ever-changing landscape of the social media metaverse. Marijuana is currently a Schedule 1 narcotic on the Controlled Substances Act (1970). This categorization of Marijuana as Schedule 1 means that it has no currently accepted medical use and has a high potential for abuse. While that definition was acceptable when cannabis was placed on the DEAs list back in 1971, there has been evidence presented in opposition to that decision. Historians note, overt racism, combined with New Deal reforms and bureaucratic self-interest is often blamed for the first round of federal cannabis prohibition under the Marihuana Tax Act of 1937, which restricted possession to those who paid a steep tax for a limited set of medical and industrial applications.    The legitimacy of cannabis businesses within the past few decades based on individual state legalization (both medical and recreational) is at the center of debate for the opportunity to market as any other business has. Legislation like the MORE act (Marijuana Opportunity Reinvestment and Expungement) which was passed by The House of Representatives gives companies some hope that they can one day be seen as legitimate businesses. If passed into law, Marijuana will be lowered or removed from the schedule list which would blow the hinges off the cannabis industry, legitimate businesses in states that have legalized its use are patiently waiting in the wings for this moment.

States like New York have made great strides in passing legislation to legalize marijuana the “right” way and legitimize business, while simultaneously separating themselves from the illegal and dangerous drug trade that has parasitically attached itself to this movement. The  Marijuana Regulation and Tax Act (MRTA)  establishes a new framework for the production and sale of cannabis, creates a new adult-use cannabis program, and expands the existing medical cannabis and cannabinoid (CBD) hemp programs. MRTA also established the Office of Cannabis Management (OCM), which is the governing body for cannabis reform and regulation, particularly for emerging businesses that wish to establish a presence in New York. The OCM also oversees the licensure, cultivation, production, distribution, sal,e and taxation of medical, adult-use, and cannabinoid hemp within New York State. This sort of regulatory body and structure are becoming commonplace in a world that was deemed to be like the “wild-west” with regulatory abandonment, and lawlessness.

 

But, What of the Children?

In light of all the regulation that is slowly surrounding the Cannabis businesses, will the rapidly growing social media landscape have to concede to the demands of the industry and recognize their presence? Even with regulations cannabis exposure is still an issue to many about the more impressionable members of the user pool. Children and young adults are spending more time than ever online and on social media.  On average, daily screen use went up among tweens (ages 8 to 12) to five hours and 33 minutes from four hours and 44 minutes, and to eight hours and 39 minutes from seven hours and 22 minutes for teens (ages 13 to 18). This group of social media consumers is of particular concern to both the legislators and the social media companies themselves. MRTA offers protection from companies advertising with the intent of looking like common brands marketed to children. Companies are restricted to using their name and their logo, with explicit language that the item inside of the wrapper has cannabis or Tetrahydrocannabinol (THC) in it. MRTA restrictions along with strict community guidelines from several social media platforms and government regulations around the promotion of marijuana products, many brands are having a hard time building their communities’ presence on social media. The cannabis companies have resorted to creating their own that promote the content they are being prevented from blasting on other sites. Big-name rapper and cannabis enthusiast, Berner who created the popular edible brand “Cookies”, has been approached to partner with the creators to bolster their brand and raise awareness.  Unfortunately, the sites became what mainstream social media sites feared in creating their guideline, an unsavory haven for illicit drug use and other illegal behavior. One of the pioneer apps in this field Social Club was removed from the app store after multiple reports of illegal behavior. The apps have since been more internally regulated but have not taken off like the creators intended. Legitimate cannabis businesses are still being blocked from advertising on mainstream apps.

These Companies Won’t go Down Without a Fight

While cannabis companies aren’t supposed to be allowed on social media sites, there are special rules in place if a legal cannabis business were to have a presence on a social media site. Social media is the fastest and most efficient way to advertise to a desired audience. With appropriate regulatory oversight and within the confines of the changing law, social media sites may start to feel pressure to allow more advertising from cannabis brands.

A Petition has been generated to bring META, the company that owns Facebook and Instagram among other sites, to discuss the growing frustrations and strict restrictions on their social media platforms. The petition on Change.org has managed to amass 13,000 signatures. Arden Richard, the founder of WeedTube, has been outspoken about the issues saying  “This systematic change won’t come without a fight. Instagram has already begun deleting posts and accounts just for sharing the petition,”. He also stated, “The cannabis industry and community need to come together now for these changes and solutions to happen,”. If not, he fears, “we will be delivering this industry into the hands of mainstream corporations when federal legalization happens.”

Social media companies recognize the magnitude of the legal cannabis community because they have been banning its content nonstop since its inception. However, the changing landscape of the cannabis industry has made their decision to ban their content more difficult. Until federal regulation changes, businesses operating in states that have legalized cannabis will be force banned by the largest advertising platforms in the world.

 

Miracles Can Be Misleading

Want to lose 20 pounds in 4 days? Try this *insert any miracle weight-loss product * and you’ll be skinny in no time!

Miracle weight-loss products (MWLP) are dietary supplements that either work as an appetite suppressant or forcefully induce weight loss. These products are not approved or indicated by pharmaceutical agencies as weight loss prophylactics. Social media users are continuously bombarded with the newest weight-loss products via targeted advertisements and endorsements from their favorite influencers. Users are force fed false promises of achieving the picture-perfect body while companies are profiting off their delusions. Influencer marketing has increased significantly as social media becomes more and more prevalent. 86 percent of women use social media for purchasing advice. 70 percent of teens trust influencers more than traditional celebrities. If you’re on social media, then you’ve seen your favorite influencer endorsing some form of a MWLP and you probably thought to yourself “well if Kylie Jenner is using it, it must be legit.”

The advertisements of MWLP are promoting an unrealistic and oversexualized body image. This trend of selling skinny has detrimental consequences, often leading to body image issues, such as body dysmorphia and various eating disorders. In 2011, the Florida House Experience conducted a study among 1,000 men and women. The study revealed that 87 percent of women and 65 percent of men compare their bodies to those they see on social media. From the 1,000 subjects, 50 percent of the women and 37 percent of the men viewed their bodies unfavorably when compared to those they saw on social media. In 2019, Project Know, a nonprofit organization that studies addictive behaviors, conducted a study which suggested that social media can worsen genetic and psychological predispositions to eating disorders.

Who Is In Charge?

The collateral damages that advertisements of MWLP have on a social media user’s body image is a societal concern. As the world becomes more digital, even more creators of MWLP are going to rely on influencers to generate revenue for their products, but who is in charge of monitoring the truthfulness of these advertisements?

In the United States, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) are the two federal regulators responsible for promulgating regulations relating to dietary supplements and other MWLP. While the FDA is responsible for the labeling of supplements, they lack jurisdiction over advertising. Therefore, the FTC is primarily responsible for advertisements that promote supplements and over-the-counter drugs.

The FTC regulates MWLP advertising through the Federal Trade Commission Act of 1914 (the Act). Sections 5 and 12 of the Act collectively prohibit “false advertising” and “deceptive acts or practices” in the marketing and sales of consumer products, and grants authority to the FTC to take action against those companies. An advertisement is in violation of the Act when it is false, misleading, or unsubstantiated. An advertisement is false or misleading when it contains “objective, material representation that is likely to deceive consumers acting reasonably under the circumstances.” An advertisement is unsubstantiated when it lacks “a reasonable basis for its contained representation.” With the rise of influencer marketing, the Act also requires influencers to clearly disclose when they have a financial or other relationship with the product they are promoting.

Under the Act, the FTC has taken action against companies that falsely advertise MWLP. The FTC typically brings enforcement claims against companies by alleging that the advertiser’s claims lack substantiation. To determine the specific level and type of substantiation required, the FTC considers what is known as the “Pfizer factors” established In re Pfizer. These factors include:

    • The type and specificity of the claim made.
    • The type of product.
    • The possible consequences of a false claim.
    • The degree of reliance by consumers on the claims.
    • The type, and accessibility, of evidence adequate to form a reasonable basis for making the particular claims.

In 2014, the FTC applied the Pfizer factors when they brought an enforcement action seeking a permanent injunction against Sensa Products, LLC. Since 2008, Sensa sold a powder weight loss product that allegedly could make an individual lose 30 pounds in six months without dieting or exercise. The company advertised their product via print, radio, endorsements, and online ads. The FTC claimed that Sensa’s marketing techniques were false and deceptive because they lacked evidence to support their health claims, i.e., losing 30 pounds in six months. Furthermore, the FTC additionally claimed that Sensa violated the Act by failing to disclose that their endorsers were given financial incentives for their customer testimonials. Ultimately, Sensa settled, and the FTC was granted the permanent injunction.

What Else Can We Do?

Currently, the FTC, utilizing its authority under the Act, is the main legal recourse for removing these deceitful advertisements from social media. Unfortunately, social media platforms, such as Facebook, Twitter, Instagram, etc., cannot be liable for the post of other users. Under section 230 of the Communications Decency Act, “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.” That means, social media platforms cannot be held responsible for the misleading advertisements of MWLP; regardless of if the advertisement is through an influencer or the companies own social media page and regardless of the collateral consequences that these advertisements create.

However, there are other courses of action that social media users and social media platforms have taken to prevent these advertisements from poisoning the body images of users. Many social media influencers and celebrities have rose to the occasion to have MWLP advertisements removed. In fact, in 2018, Jameela Jamil, an actress starring on The Good Place, launched an Instagram account called I Weigh which “encourages women to feel and look beyond the flesh on their bones.” Influencer activism has led to Instagram and Facebook blocking users, under the age of 18, from viewing posts advertising certain weight loss products or other cosmetic procedures. While these are small steps in the right direction, more work certainly needs to be done.

A Uniquely Bipartisan Push to Amend/Repeal CDA 230

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

“THE 26 WORDS THAT SHAPED THE INTERNET”

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

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

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).

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

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

BIPARTISAN OPPOSITION

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

 DEMOCRATIC OPPOSITION

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

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

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

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

REPUBLICAN OPPOSITION

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

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

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

LONE SUPPORTERS

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

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

“collapse how we communicate on the Internet.”

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

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

DIFFERING OPINIONS

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

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

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

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

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

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

FEAR OF CHANGE

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

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

FUTURE CHANGE..?

 

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

 

Can Social Media Be Regulated?

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

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

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

Large majority of Americans get news on digital devices

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

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

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

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

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

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

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

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

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

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

Don’t Throw Out the Digital Baby with the Cyber Bathwater: The Rest of the Story

This article is in response to “Is Cyberbullying the Newest Form of Police Brutality?” which discussed law enforcement’s use of social media to apprehend people. The article provided a provocative topic, as seen by the number of comments.

I believe that discussion is healthy for society; people are entitled to their feelings and to express their beliefs. Each person has their own unique life experiences that provide a basis for their beliefs and perspectives on issues. I enjoy discussing a topic with someone because I learn about their experiences and new facts that broaden my knowledge. Developing new relationships and connections is so important. Relationships and new knowledge may change perspectives or at least add to understanding each other better. So, I ask readers to join the discussion.

My perspectives were shaped in many ways. I grew up hearing Paul Harvey’s radio broadcast “The Rest of the Story.” His radio segment provided more information on a topic than the brief news headline may have provided. He did not imply that the original story was inaccurate, just that other aspects were not covered. In his memory, I will attempt to do the same by providing you with more information on law enforcement’s use of social media. 

“Is Cyberbullying the Newest Form of Police Brutality?”

 The article title served its purpose by grabbing our attention. Neither cyberbullying or police brutality are acceptable. Cyberbullying is typically envisioned as teenage bullying taking place over the internet. The U.S. Department of Health and Human Services states that “Cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else. It can include sharing personal or private information about someone else causing embarrassment or humiliation”. Similarly, police brutality occurs when law enforcement (“LE”) officers use illegal and excessive force in a situation that is unreasonable, potentially resulting in a civil rights violation or a criminal prosecution.

While the article is accurate that 76% of the surveyed police departments use social media for crime-solving tips, the rest of the story is that more departments use social media for other purposes. 91% notified the public regarding safety concerns. 89% use the technology for community outreach and citizen engagement, 86% use it for public relations and reputation management. Broad restrictions should not be implemented, which would negate all the positive community interactions increasing transparency.   

Transparency 

In an era where the public is demanding more transparency from LE agencies across the country, how is the disclosure of the public’s information held by the government considered “Cyberbullying” or “Police Brutality”? Local, state, and federal governments are subject to Freedom of Information Act laws requiring agencies to provide information to the public on their websites or release documents within days of requests or face civil liability.

New Jersey Open Public Records

While the New Jersey Supreme Court has not decided if arrest photographs are public, the New Jersey Government Records Council (“GRC”) has decided in Melton v. City of Camden, GRC 2011-233 (2013) that arrest photographs are not public records under NJ Open Public Records Act (“OPRA”) because of Governor Whitmer’s Executive Order 69 which exempts fingerprint cards, plates and photographs and similar criminal investigation records from public disclosure. It should be noted that GRC decisions are not precedential and therefore not binding on any court.

However, under OPRA, specifically 47:1A-3 Access to Records of Investigation in Progress, specific arrest information is public information and must be disclosed to the public within 24 hours of a request to include the:

  • Date, time, location, type of crime, and type of weapon,
  • Defendant’s name, age, residence, occupation, marital status, and similar background information.
  • Identity of the complaining party,
  • Text of any charges or indictment unless sealed,
  • Identity of the investigating and arresting officer and agency and the length of the investigation,
  • Time, location, and the arrest circumstances (resistance, pursuit, use of weapons),
  • Bail information.

For years, even before Melton, I believed that an arrestee’s photograph should not be released to the public. As a police chief, I refused numerous media requests for arrestee photographs protecting their rights and believing in innocence until proven guilty. Even though they have been arrested, the arrestee has not received due process in court.

New York’s Open Public Records

In New York under the Freedom of Information Law (“FOIL”), Public Officers Law, Article 6, §89(2)(b)(viii) (General provisions relating to access to records; certain cases) The disclosure of LE arrest photographs would constitute an unwarranted invasion of an individual’s personal privacy unless the public release would serve a specific LE purpose and the disclosure is not prohibited by law.

California’s Open Public Records

Under the California Public Records Act (CPRA) a person has the statutory right to be provided or inspect public records, unless a record is exempt from disclosure. Arrest photographs are inclusive in arrest records along with other personal information, including the suspect’s full name, date of birth, sex, physical characteristics, occupation, time of arrest, charges, bail information, any outstanding warrants, and parole or probation holds.

Therefore under New York and California law, the blanket posting of arrest photographs is already prohibited.

Safety and Public Information

 Recently in Ams. for Prosperity Found. V. Bonta, the compelled donor disclosure case, while invalidating the law on First Amendment grounds, Justice Alito’s concurring opinion briefly addressed the parties personal safety concerns that supporters were subjected to bomb threats, protests, stalking, and physical violence. He cited Doe v Reed  which upheld disclosures containing home addresses under Washington’s Public Records Act despite the growing risks by anyone accessing the information with a computer. 

Satisfied Warrant

I am not condoning Manhattan Beach Police Department’s error of posting information on a satisfied warrant along with a photograph on their “Wanted Wednesday” in 2020. However, the disclosed information may have been public information under CPRA then and even now. On July 23, 2021, Governor Newsom signed a law amending Section 13665 of the CPRA prohibiting LE agencies from posting photographs of an arrestee accused of a non-violent crime on social media unless:

  • The suspect is a fugitive or an imminent threat, and disseminating the arrestee’s image will assist in the apprehension.
  • There is an exigent circumstance and an urgent LE interest.
  • A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate LE interest.

The critical error was that the posting stated the warrant was active when it was not. A civil remedy exists and was used by the party to reach a settlement for damages. Additionally, it could be argued that the agency’s actions were not the proximate cause when vigilantes caused harm.

Scope of Influence

LE’s reliance on the public’s help did not start with social media or internet websites. The article pointed out that “Wanted Wednesday” had a mostly local following of 13,600. This raised the question if there is much of a difference between the famous “Wanted Posters” from the wild west or the “Top 10 Most Wanted” posters the Federal Bureau of Investigations (“FBI”) used to distribute to Post Offices, police stations and businesses to locate fugitives. It can be argued that this exposure was strictly localized. However, the weekly TV show America’s Most Wanted, made famous by John Walsh, aired from 1988 to 2013, highlighting fugitive cases nationally. The show claims it helped capture over 1000 criminals through their tip-line. However, national media publicity can be counter-productive by generating so many false leads that obscure credible leads.

The FBI website contains pages for Wanted People, Missing People, and Seeking Information on crimes. “CAPTURED” labels are added to photographs showing the results of the agency’s efforts. Local LE agencies should follow FBI practices. I would agree with the article that social media and websites should be updated; however, I don’t agree that the information must be removed because it is available elsewhere on the internet.

Time

Vernon Gebeth, the leading police homicide investigation instructor, believes time is an investigator’s worst enemy.  Eighty-five percent of abducted children are killed within the first five hours. Almost all are killed within the first twenty-four hours. Time is also critical because, for each hour that passed, the distance a suspect’s vehicle can travel expands by seventy-five miles in either direction. In five hours, the area can become larger than 17,000 square miles. Like Amber Alerts, social media can be used to quickly transmit information to people across the country in time-sensitive cases.

Live-Streaming Drunk Driving Leads to an Arrest

When Whitney Beall, a Florida woman, used a live streaming app to show her drinking at a bar then getting into her vehicle. The public dialed 911, and a tech-savvy officer opened the app, determined her location, and pulled her over. She was arrested after failing a DWI sobriety test.  After pleading guilty to driving under the influence, she was sentenced to 10 days of weekend work release, 150 hours of community service, probation, and a license suspension. In 2019 10,142 lives were lost to alcohol impaired driving crashes.

Family Advocating

Social media is not limited to LE. It also provides a platform for victim’s families to keep attention on their cases. The father of a seventeen-year-old created a series of Facebook Live videos about a 2011 murder resulting in the arrest of Charles Garron. He was to a fifty-year prison term.

Instagram Selfies with Drugs, Money and Stolen Guns 

Police in Palm Beach County charged a nineteen-year-old man with 142 felony charges, including possession of a weapon by a convicted felon, while investigating burglaries and jewel thefts in senior citizen communities. An officer found his Instagram account with incriminating photographs. A search warrant was executed, seizing stolen firearms and $250,000 in stolen property from over forty burglaries.

Bank Robbery Selfies


Police received a tip and located a social media posting by John E. Mogan II of himself with wads of cash in 2015. He was charged with robbing an Ashville, Ohio bank. He pled guilty and was sentenced to three years in prison. According to news reports, Morgan previously  served prison time for another bank robbery.

Food Post Becomes the Smoking Gun

LE used Instagram to identify an ID thief who posted photographs of his dinner at a high-end steakhouse with a confidential informant (“CI”).  The man who claimed he had 700,000 stolen identities and provided the CI a flash drive of stolen identities. The agents linked the flash drive to a “Troy Maye,” who the CI identified from Maye’s profile photograph. Authorities executed a search warrant on his residence and located flash drives containing the personal identifying information of thousands of ID theft victims. Nathaniel Troy Maye, a 44-year-old New York resident, was sentenced to sixty-six months in federal prison after pleading guilty to aggravated identity theft.

 

Wanted Man Turns Himself in After Facebook Challenge With Donuts

A person started trolling Redford Township Police during a Facebook Live community update. It was determined that he was a 21-year-old wanted for a probation violation for leaving the scene of a DWI collision. When asked to turn himself in, he challenged the PD to get 1000 shares and he would bring in donuts. The PD took the challenge. It went viral and within an hour reached that mark acquiring over 4000 shares. He kept his word and appeared with a dozen donuts. He faced 39 days in jail and had other outstanding warrants.

The examples in this article were readily available on the internet and on multiple news websites, along with photographs.

Under state Freedom of Information Laws, the public has a statutory right to know what enforcement actions LE is taking. Likewise, the media exercises their First Amendment rights to information daily across the country when publishing news. Cyber journalists are entitled to the same information when publishing news on the internet and social media. Traditional news organizations have adapted to online news to keep a share of the news market. LE agencies now live stream agency press conferences to communicating directly with the communities they serve.

Therefore the positive use of social media by LE should not be thrown out like bathwater when legal remedies exist when damages are caused.

“And now you know…the rest of the story.”

Educational tools and data privacy

Advances in technology have forever changed education. More than ever, schools utilize online and interactive forums to enhance the learning process.

School social media pages are often used to communicate upcoming events and other news to large numbers of people who have an interest in organization while groups are designed to create communities of people. Students, parents and schools utilize social media to convey messages for widespread dissemination. The superintendent may want to give updates on the newest COVID restrictions, teachers communicate about the upcoming class trip and parents find a pedagogical group setting. Not to mention, Pace Law students generously share that updated syllabus before the night’s class.

In today’s world, being literate means more than just being able to read and write; we also need to know how to effectively navigate and find information online, operate a computer, use the digital medium for learning, manage online identity(s), communicate online, understand online social norms, and collaborate. Benefits of utilizing social media for educational use include creating a sense of community and promoting collaboration, enhancing communication, developing computer literacy and language skills, and incorporating student culture into the learning environment while allowing for a connection between persons abroad.

In turn, technology companies obtain a significant amount of personal information about the user, creating concerns in the educational realm about student safety and privacy which can, at times, fall under the Family Educational Rights and Privacy Act (FERPA), that was created to protect students’ personally identifiable information (PII) from unauthorized disclosure. Other rules and acts that attempt to protect educational records include Children’s Online Privacy Protection Act of 1998, (COPPA) and Internet and Protection of Pupil Rights Amendment (PPRA). FERPA does not require educational institutions to adopt specific security controls, posing a risk for student privacy. To complicate the matter of what student information should be protected, the school official exception of FERPA allows school districts to disclose PII to a third party provider serving a legitimate educational interest. However, FERPA may not be equipped to deal with modern data collection of student records and information to protect it when schools increasingly use third-party applications to provide valuable educational tools.

Online educational services collect a large amount of transactional data a/k/a “metadata” which refers to information about how long a particular student took to perform an online task, how many attempts the student made, and how long the student’s mouse hovered over an item, potentially indicating indecision. This can be a useful tool to educators but at what cost to students?

The potential exists for educational platforms to allow third-party data harvesting. Through contracts with educational institutions, Google provided a large range of products and services including Google Meet, Duo, Google Messaging, Gmail and the ability to share documents. A 2014 litigation case against Google included allegations that the company collected student emails and metadata to create secret user profiles for its advertising tools without consent. Similar to the facts when Facebook provided access to Cambridge Analytica.

In 2019 the FTC and Facebook settled on a $5 billion penalty for Facebook’s violations of previously issued FTC orders related to Facebook’s privacy practice.

When one visits a school’s Facebook page, the amount of time spent, and the “comments” and “likes” left, can become part of the data profile that Facebook has created for them. A school district page or group gives Facebook “another data point” on the users who visit it, said Doug Levin, the founder and president of EdTech Strategies, LLC, and some districts also have Facebook trackers on their district sites. Levin’s recent research report, “Tracking: EDU—Education Agency Website Security and Privacy Practices,” found that more than 25% of the 159 school websites he studied had embedded user tracking tools that reported information back to Facebook. These trackers can use information about users’ browsing history and other activity across the web—not just on Facebook—to target ads and most school district websites don’t disclose in their privacy policies that the data sharing is taking place. Sound familiar?

Cambridge Analytica, the political consulting firm, used data gathered in a personality quiz administered through Facebook to create voter profiles. Some 270,000 users downloaded the quiz app which then gave access to their profiles, and ultimately, access to their friends’ profiles and according to Facebook, affected 87 million users. Because of the information being inappropriately used surrounding the 2016 Presidential election scandal, Cambridge Analytica LLC recently filed in United States Bankruptcy Court.

All users and administrators should be educated on what data is collected and how that data is used. Schools need to maintain awareness of current state, federal and other pertinent laws that affect data and online educational services. Parents and students need to be aware of which online educational services are being used. Transparency needs to go both ways and students have an obligation to ask and ultimately know what data is being collected and how that data is being used.

One education research organization, the National Education Policy Center, has deleted its Facebook page entirely—and is suggesting schools do the same until companies are subject to greater accountability and transparency. Is that really an option though, with how big the services have become? Is there a happy (and safe) medium between writing on slate boards and sharing everything? Can Facebook play nice in the sand box and follow FTC orders? Does their cost benefit analysis favor repeated violations?

Perhaps FERPA, and other similar acts, need to be updated to include online learning programs and protection from data breach situations as seen with Facebook, Google and Cambridge Analytica.

If I were to sue “Gossip Girl.”

If you grew up in New York and were a teenager in the early 2000s, you probably know the top-rated show “Gossip Girl.” “Gossip Girl” is the alias for an anonymous blogger who creates chaos by making public the very intimate and personal lives of upper-class high school students. The show is very scandalous due to the nature of these teenagers’ activities, but what stands out is the influence gossip girl had on these young teenagers. And it makes one think, what could I do if Gossip Girl came after me?

 

Anonymity

When bringing a claim for internet defamation against an anonymous blogger, the trickiest part is getting over the anonymity. In Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009), a New York state trial court granted plaintiff, model Liskula Cohen, pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous. The court analyzed the discovery request under New York CPLR § 3102(c), which allows for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing a meritorious cause of action before obtaining the identity of an anonymous defendant. The court acknowledges the First Amendment issues at stake, and citing Dendrite; the court opined that New York law’s requirement of a prima facie showing appears to address the constitutional concerns raised in the context of this case. The court held that Cohen adequately made this prima facie showing defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion.

In Cohen, the court decided that Kiskula Cohen was entitled to the pre-suit discovery under CPLR § 3102(c). To legally obtain “Gossip Girl’s” true identity under this statute, we would have to prove that the statement posted on her blog against us is on its face defamatory and not simply an expression of protected opinion.

 

Defamation

Now that we may have uncovered our anonymous blogger, “Gossip Girl,” aka Dan Humphrey now we may dive into the defamation issue. There are two types of defamation: 1) Libel is the written form of defamation, and 2) Slander is the oral form of defamation. Because Gossip Girl’s choice of media is a written blog, our case would fall under Libel. But does our claim meet the legal elements of defamation?

In New York, there are four elements that the alleged defamation must meet:

  1. A false statement;
  2. Published to a third-party without privilege or authorization;
  3. With fault amounting to at least negligence;
  4. That caused special harm or ‘defamation per se.’

Dillon v. City of New York, 261 AD2d 34, 38, 704 NYS2d1 (1999)

Furthermore, our defamation claim for the plaintiff must “set forth the particular words allegedly constituting defamation and it must also allege time when, place where, and the manner in which the false statement was made, and specific to whom it was made.” Epifani v. Johnson, 65 A.D.3d 224, 233, 882 N.Y.S.2d 234 (2d Dept. 2009). The court simply means that we must provide details such as: what specific words were used? What were the terms used? Was the plaintiff labeled a “how” or “skank” like in Cohen, or did they simply call you “ugly”? When? The time said words were spoken, written, or published. Where? The place where they were spoken, written, or published (platform). How? The manner in which they were spoken, written, or published. Lastly Whom? The party or source to whom the statement was made to.

The plaintiff’s status determines the level of burden of proof in defamation lawsuits in N.Y. Is the plaintiff considered a “public” figure or a “private” citizen? To determine this status New York State courts use the “vortex notion.” This term simply means that a person who would generally qualify as a “private” citizen is considered a “public” figure if they draw public attention to themselves, like jumping right into a tornado vortex. Defamation for a “public” figure has a higher preponderance of evidence in defamation lawsuits. The plaintiff must prove that the defendant acted with actual malice (reckless disregard for the truth or falsity of the statement). For defamation of a “private” citizen, the plaintiff the N.Y. court apply a negligence standard of fault for the defendant unless the statements were related to a matter of legitimate public concern.

When the plaintiff is a private figure, and the allegedly defamatory statements relate to a matter of legitimate public concern, they must prove that the defendant acted “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” Chapeau v. Utica Observer-Dispatch, 28 N.Y.S.2d 196, 199 (N.Y. 1975) This standard focuses on the objective evaluation of the defendant’s actions rather than looking at the defendant’s state of mind at the time of publication.

If the statements Gossip Girl published are so inherently apparent, we may explore defamation per se. There are four elements to defamation per se in New York:

  1. Statement charging a plaintiff with a serious crime.
  2. Statements that tend to injure another in his or her trade, business, or profession
  3. Statements imputing a loathsome disease on a plaintiff, &
  4. Statements imputing unchastity on a woman

Liberman v. Gelstein, 80 NY2d 429, 435, 605 NE2d 344, 590 NYS2d 857 (1992). If the statements meet these elements, the court may find that the statements were inherently injurious that the damages to the plaintiff’s person are presumed. Another option to consider is defamation per quod which requires the plaintiff to provide extrinsic and supporting evidence to prove the defamatory nature of the alleged statement(s) in question that is not inherently apparent.

 

Privileges and Defenses

After concluding that Gossip Girl defamed the plaintiff, we must ensure that the defamatory statement is not protected under any privileges. New York courts recognize several privileges and defenses in the context of defamation actions, including the fair report privilege (a defamation lawsuit cannot be sustained against any person making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”) N.Y.Civ.Rights §74, the opinion and fair comment privileges, substantial truth (the maker cannot be held liable for saying things that are actually true), and the wire service defense. There is also Section 230 of the Communications Decency Act, which may protect media platforms or publishers if a third party, not acting under their direction, posts something on their blog or website that is defamatory. Suppose a statement is privileged or defense applies. In that case, the maker of that statement may be immune from any lawsuit arising from those privileged statements.

 

Statute of Limitations

A New York plaintiff must start an action within one (1) year of the date the defamatory material was published or communicated to a third-party CPLR § 15 Sub 3. New York has also adopted a law directed explicitly to internet posts. The “single publication,” a party that causes the mass publication of defamatory content, may only be sued once for its initial publication of that content. For example, suppose a blog publishes a defamatory article that is circulated to thousands of people. In the case above, the blog may only be sued once. The Statute of Limitations begins to run at the time of first publication. “Republication” of the allegedly defamatory content will restart the statute of limitations. A republication occurs when “a separate aggregate publication from the original, on a different occasion, which is not merely a ‘delayed circulation of the original edition.'” Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). Courts examine whether the republication was intended to and actually reached new audiences. Altering the allegedly defamatory content and moving web content to a different web address may trigger republication.

 

Damages

Damages to defamation claims are proportionate to the harm suffered by the plaintiff. If a plaintiff is awarded damages, it may be in the form of compensatory, nominal, or punitive damages. There are two types of compensatory damages 1) special damages and 2) general damages. Special damages are based on economic harm and must have a specific amount identified. General damages are challenging to assess. The jury has the discretion to determine the award amount after weighing all the facts. Nominal damages are small monetary sums awarded to vindicate the plaintiff’s name. Punitive damages are intended to punish the defendant and are meant to deter the defendant from repeating defamatory conduct.

 

When Gossip Girl first aired, the idea of a blog holding cultural relevance was not yet mainstream. Gossip Girl’s unchecked power kept many characters from living their lives freely and without scrutiny. After Gossip Girl aired, an anonymous blog, “Socialite Rank,” emerged. It damaged the reputation of the targeted victim, Olivia Palermo, who eventually dropped the suit she had started against the blog. The blog “Skanks in NYC” painted a false image of who Kiskula Cohen was and caused her to lose potential jobs. In the series finale, after the identity of Gossip Girl is revealed, the characters laugh. Still, one of the characters exclaimed, “why do you all think that this is funny? Gossip Girl ruined our lives!” Defamation can ruin lives. As technology advances, the law should as well. New York has adopted its defamation laws that were in place to ensure that person cannot hide behind anonymity to ruin another person’s life.

 

Do you feel protected against online defamation?

XOXO

How Defamation and Minor Protection Laws Ultimately Shaped the Internet

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.

The Communications Decency Act (CDA) was originally enacted with the intention of shielding minors from indecent and obscene online material. Despite its origins, Section 230 of the Communications Decency Act is now commonly used as a broad legal safeguard for social media platforms to shield themselves from legal liability for content posted on their sites by third parties. Interestingly, the reasoning behind this safeguard arises both from defamation common law, and constitutional free speech laws. As the internet has grown, however, this legal safeguard has gained increasing criticism. However, is this legislation actually undesirable? Many would disagree as section 230 contains “the 26 words that created the internet.”

 

Origin of the Communications Decency Act

The CDA was introduced and enacted as an attempt to shield minors from obscene or indecent content online. Although parts of the Act were later struck down for first amendment free speech violations, the Court left section 230 intact. The creation of section 230 was influenced by two landmark court decisions of defamation lawsuits.

The first case was in 1991, and involved an Internet site that hosted around 150 online forums. A claim was brought against the internet provider when a columnist of one of the online forums posted a defamatory comment about his competitor. The competitor sued the online distributor for the published defamation. The courts categorized the internet service provider as a distributor because they did not review any content of the forums before the content was posted to the site. As a distributor, there was no legal liability, and the case was dismissed.

 

Distributor Liability

Distributor Liability refers to the limited legal consequences that a distributor is exposed to for defamation. A common example of a distributor, is a bookstore or library. The theory behind distributor liability is that it would be impossible for distributors to moderate and censor every piece of content that they disperse because of the sheer volume, and the impossibility of knowing whether something is false or not.

The second case that influenced the creation of section 230, was Stratton Oakmont, Inc. v. Prodigy Servs. Co., in which the court used publisher liability theory to find the internet provider liable for the third party defamatory postings published on its site.  The court deemed the website a publisher because they moderated and deleted certain posts, regardless of the fact that there were far too many postings a day to regulate each one.

 

Publisher Liability

Under common law principles, a person who publishes a third-party’s defamatory statement bears the same legal responsibility as the creator of that statement. This liability is often referred to as “publisher liability,” and is based in theory that a publisher has the knowledge, opportunity, and ability to exercise control over the publication. For example, a newspaper publisher could face legal consequences for the content located within it. The court’s decision was significant because it meant that if a website attempted to moderate certain posts, it would be held liable for all posts.

 

Section 230’s Creation

In response to the Stratton-Oakmond case, and the ambiguous court decisions regarding internet services provider’s liability, members of Congress introduced an amendment to the CDA that later became Section 230. The Amendment was specifically introduced and passed with the goal of encouraging the development of unregulated, free speech online by relieving internet providers from any liability for their content.

 

Text of the Act- Subsection (c)(1) 

“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.”

 Section 230 further provides that…

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

 The language above removes legal consequences arising from content posted on their forum. Courts have interpreted this subsection as providing broad immunity to online platforms from suits over content of third parties. Because of this, section 230 has become the principal legal safeguard from lawsuits over sites content.

 

The Good

  •  Section 230 can be viewed as being one of the most important pieces of legislation that protects free speech online. One of the unique aspects of this legislation is that it essentially extends free speech protection, applying it to private, non-governmental companies.
  • Without CDA 230, the internet would be a very different place. This section influenced some of the internet’s most distinctive characteristics. The internet promotes free speech and offers the ability for worldwide connectivity.
  • The CDA 230 does not fully eliminate liability or court remedies for victims of online defamation. Rather, it makes only the creator themselves liable for their speech, instead of the speaker and the publisher.

 

 

The Bad

  •  Because of the legal protections section 230 provides, social media networks have less of an incentive to regulate false or deceptive posts. Deceptive online posts can have an enormous impact on society. False posts have the ability to alter election results, or lead to dangerous misinformation campaigns, like the QAnon conspiracy theory, and the anti-vaccination movement.
  • Section 230 is twenty-five years old, and has not been updated to match the internet’s extensive growth.
  • Big Tech companies have been left largely unregulated regarding their online marketplaces.

 

 The Future of 230

While section 230 is still successfully used by social media platforms, concerns over the archaic legislation have mounted. Just recently, Justice Thomas, who is infamous for being a quiet Justice, wrote a concurring opinion articulating his view that the government should regulate content providers as common carriers, like utilities companies. What implications could that have on the internet? With the growing level of criticism surrounding section 230, will Congress will finally attempt to fix this legislation? If not, will the Supreme Court be left to tackle the problem themselves?

Is Cyberbullying the Newest Form of Police Brutality?

Police departments across the country are calling keyboard warriors into action to help them solve crimes…but at what cost?

In a survey of 539 police departments in the U.S., 76% of departments said that they used their social media accounts to solicit tips on crimes. Departments post “arrested” photos to celebrate arrests, surveillance footage for suspect identification, and some even post themed wanted posters, like the Harford County Sheriff’s Office.

The process for using social media as an investigative tool is dangerously simple and the consequences can be brutal. A detective thinks posting on social media might help an investigation, so the department posts a video or picture asking for information. The community, armed with full names, addresses, and other personal information, responds with some tips and a lot of judgmental, threatening, and bigoted comments. Most police departments have no policy for removing posts after information has been gathered or cases are closed, even if the highlighted person is found to be innocent. A majority of people who are arrested are not even convicted of a crime.

Law enforcement’s use of social media in this way threatens the presumption of innocence, creates a culture of public humiliation, and often results in a comment section of bigoted and threatening comments.

On February 26, 2020, the Manhattan Beach Police Department posted a mugshot of Matthew Jacques on their Facebook and Instagram pages for their “Wanted Wednesday” social media series. The pages have 4,500 and 13,600, mostly local, followers, respectively. The post equated Matthew to a fugitive and commenters responded publicly with information about where he worked. Matthew tried to call off work out of fear of a citizen’s arrest. The fear turned out to be warranted when two strangers came to find him at his workplace. Matthew eventually lost his job because he was too afraid to return to work.

You may be thinking this is not a big deal. This guy was probably wanted for something really bad and the police needed help. After all, the post said the police had a warrant. Think again.

There was no active warrant for Matthew at the time, his only (already resolved) warrant came from taking too long to schedule remedial classes for a 2017 DUI. Matthew was publicly humiliated by the local police department. The department even refused to remove the social media posts after being notified of the truth. The result?

Matthew filed a complaint against the department for defamation (as well as libel per se and false light invasion of privacy). Typically, defamation requires the plaintiff to show:

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Here, the department made a false statement – that there was a warrant. They published it on their social media, satisfying the second element. They did not check readily available public records that showed Matthew did not have a warrant. Finally, Matthew lived in fear and lost his job. Clearly, he was harmed.

The police department claimed their postings were protected by the California Constitution, governmental immunity, and the 1st Amendment. Fortunately, the court denied the department’s anti-SLAPP motion. Over a year after postings, the department took down the posting and settled the lawsuit with Matthew.

Some may think that Matthew’s case is an anomaly and that, usually, the negative attention is warranted and perhaps even socially beneficial because it further de-incentivizes criminal activity via humiliation and social stigma. However, most arrests don’t result in convictions, many of the police’s cyberbullying victims are likely innocent. Even if they are guilty, leaving these posts up can increase the barrier to societal re-entry, which can increase recidivism rates. A negative digital record can make finding jobs and housing more difficult. Many commenters assume the highlighted individual’s guilt and take to their keyboards to shame them.

Here’s one example of a post and comment section from the Toledo Police Department Facebook page:

Unless departments change their social media use policies, they will continue to face defamation lawsuits and continue to further the degradation of the presumption of innocence.

Police departments should discontinue the use of social media in the humiliating ways described above. At the very least, they should consider using this tactic only for violent, felonious crimes. Some departments have already changed their policies.

The San Francisco Police Department has stopped posting mugshots for criminal suspects on social media. According to Criminal Defense Attorney Mark Reichel, “The decision was made in consultation with the San Francisco Public Defender’s Office who argued that the practice of posting mugshots online had the potential to taint criminal trials and follow accused individuals long after any debt to society is paid.” For a discussion of some of the issues social media presents to maintaining a fair trial, see Social Media, Venue and the Right to a Fair Trial.

Do you think police departments should reconsider their social media policies?