Tag: Section 230

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

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

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

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

Privacy Law Introduction

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

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

Privacy Torts

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

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

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

The Federal Trade Commission (FTC) and Social Media

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

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

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

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

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

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

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

Current Bills on Privacy

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

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

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

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

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

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

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

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

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

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

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

From Hashtags to Hazards: Dangerous Diets and Digital Doses

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

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

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

Turning an Unintended Outcome into a Marketing Advantage

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

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

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

Rewards Turn to Consequences

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

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

Off-Label Dangers and Legal Showdowns

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

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

Predicting the Future of Ozempic

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

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

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

Where Does the Liability Land?

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

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

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

Stranger Danger

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

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

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

Unlimited Immunity Cards!

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

Wiping the Slate

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

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

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

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

Not MY Speech

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

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

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

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

THE SCHEME BEHIND AN ILLEGAL STREAM

FOLLOW THE STREAM TOWARDS A FELONY

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

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

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

ALL FOR ONE, ONE FOR ALL

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

PLATFORMS ENGINEERING IS PERFECTLY IMPERFECT

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

NOT MY MESS, NOT MY PROBLEM

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

MORE MONEY, MORE PROBLEMS

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

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

WHAT’S MINE IS YOURS

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

AN ISSUE, BUT NOT AN ISSUE WORTH SOLVING

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

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

Social Media Has Gone Wild

Increasing technological advances and consumer demands have taken shopping to a new level. You can now buy clothes, food, and household items from the comfort of your couch, and in a few clicks: add to cart, pay, ship, and confirm. Not only are you limited to products sold in nearby stores, but shipping makes it possible to obtain items internationally. Even social media platforms have shopping features for users, such as Instagram Shopping, Facebook Marketplace, and WhatsApp. Despite its convenience, online shopping has also created an illegal marketplace for wildlife species and products.

Most trafficked animal-the Pangolin

Wildlife trafficking is the illegal trading or sale of wildlife species and their products. Elephant ivory, rhinoceros horns, turtle shells, pangolin scales, tiger furs, and shark fins are a few examples of highly sought after wildlife animal products. As social media platforms expand, so does wildlife trafficking.

Wildlife Trafficking Exists on Social Media?

Social media platforms make it easier for people to connect with others internationally. These platforms are great for staying in contact with distant aunts and uncles, but it also creates another method for criminals and traffickers to communicate. It provides a way to remain anonymous without having to meet in-person, which makes it harder for law enforcement to identify a user’s true identity. Even so, can social media platforms be held responsible for making it easier for criminals to commit wildlife trafficking crimes?

Thanks to Section 230 of the Communications Decency Act, the answer is most likely: no.

Section 230 provides broad immunity to websites for content a third-party user posts on the website. Even when a user posts illegal content on a website, the website cannot be held liable for such content. However, there are certain exceptions where websites have no immunity. It includes human and sex trafficking. Although these carve-outs are fairly new, it is clear that there is an interest in protecting people vulnerable to abuse.

So why don’t we apply the same logic to animals? Animals are also a vulnerable population. Many species are unmatched to guns, weapons, traps, and human encroachment on their natural habitats. Similar to children, animals may not have the ability to understand what trafficking is or even the physical strength to fight back. Social media platforms, like Facebook, attempt to combat the online wildlife trade, but its efforts continue to fall short.

How is Social Media Fighting Back?

 

In 2018, the World Wildlife Fund and 21 tech companies created the Coalition to End Wildlife Trafficking Online. The goal was to reduce illegal trade by 80% by 2020. While it is difficult to measure whether this goal is achievable, some social media platforms have created new policies to help meet this goal.

“We’re delighted to join the coalition to end wildlife trafficking online today. TikTok is a space for creative expression and content promoting wildlife trafficking is strictly prohibited. We look forward to partnering with the coalition and its members as we work together to share intelligence and best-practices to help protect endangered species.”

–Luc Adenot, Global Policy Lead, Illegal Activities & Regulated Goods, TikTok

In 2019, Facebook banned the sale of animals altogether on its platform. But this did not stop users. A 2020 report showed a variety of illegal wildlife was for sale on Facebook. This clearly shows the new policies were ineffective. Furthermore, the report stated:

“29% of pages containing illegal wildlife for sale were found through the ‘Related Pages’ feature.”

This suggests that Facebook’s algorithm purposefully connects users to pages and similar content based on a user’s interest. Algorithms incentivize users to rely and depend on wildlife trafficking content. They will continue to use social media platforms because it does half of the work for them:

      • Facilitating communication
      • Connecting users to potential buyers
      • Connecting users to other sellers
      • Discovering online chat groups
      • Discovering online community pages

This fails to reduce wildlife trafficking outreach. Instead, it accelerates visibility of this type of content to other users. Does Facebook’s algorithms go beyond Section 230 immunity?

Under these circumstances, Facebook maintains immunity. In Gonzalez v. Google LLC, the court explains how websites are not liable for user content when the website employs content-neutral algorithms. This means that a website did nothing more than program an algorithm to present similar content to a user’s interest. The website did not offer direct encouragement to publish illegal content, nor did it treat the content differently from other user content.

What about when a website profits from illegal posts? Facebook receives a 5% selling fee for each shipment sold by a user. Since illegal wildlife products are rare, these transactions are highly profitable. A pound of ivory can be worth up to $3,300. If a user sells five pounds of ivory from endangered elephants on Facebook, the platform would profit $825 from one transaction. The Facebook Marketplace algorithm is similar to the algorithm based on user interest and engagement. Here, Facebook’s algorithm can push illegal wildlife products to a user who has searched for similar products. Yet, if illegal products are constantly pushed and successful sales are made, Facebook then benefits and makes a profit off these transactions. Does this mean that Section 230 will continue to protect Facebook when it profits from illegal activity?

Evading Detection

Even with Facebook’s prohibited sales policy, users get creative to avoid detection. A simple search of “animals for sale” led me to a public Facebook group. Within 30 seconds of scrolling, I found a user selling live coral, and another user selling an aquarium system with live coral, and live fish. The former reads: Leather $50. However, the picture shows a live coral in a fish tank. Leather identifies the type of coral it is, without saying it’s coral. Even if this was fake coral, a simple Google search shows a piece of fake coral is worth less than $50. If Facebook is failing to prevent users from selling live coral and live fish, it is most likely failing to prevent online wildlife trafficking on its platform.

Another method commonly used to evade detection is when users post a vague description or a photo of an item and include the words “pm me” or “dm me.” These are abbreviations for “private message me” or “direct message me.” It is a quick way to direct interested users to personally reach out to the individual and discuss details in a private chat. It is a way to communicate outside of the leering public eye. Sometimes a user will offer alternative contact methods, such as a personal phone number or an email address. This transitions the interaction off of or to a new social media platform.

Due to high profitability, there are lower stakes when transactions are conducted anonymously online. Social media platforms are great for concealing a user’s identity. Users can use fake names to maintain anonymity behind their computer and phone screen. There are no real consequences for using a fake name when the user is unknown. Nor is there any type of identity verification to truly discover the user’s true identity. Even if a user is banned, the person can create a new account under a different alias. Some users are criminals tied to organized crime syndicates or terrorist groups. Many users operate outside of the United States and are overseas, which makes it difficult to locate them. Thus, social media platforms incentivize criminals to hide among various aliases with little to lose.

Why Are Wildlife Products Popular?

Wildlife products have a high demand for human benefit and use. Common reasons why humans value wildlife products include:

Do We Go After the Traffickers or the Social Media Platform?

Taking down every single wildlife trafficker, and users that facilitate these transactions would be the perfect solution to end wildlife trafficking. Realistically, it’s too difficult to identify these users due to online anonymity and geographical limitations. On the other hand, social media platforms continue to tolerate these illegal activities.

Here, it is clear that Facebook is not doing enough to stop wildlife trafficking. With each sale made on Facebook, Facebook receives a percentage. Section 230 should not protect Facebook when it reaps the benefits of illegal transactions. This takes it a step too far and should open Facebook to the market of: Section 230 liability.

Should Facebook maintain Section 230 immunity when it receives proceeds from illegal wildlife trafficking transactions? Where do we draw the line?

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

Opening

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

Current Relevant Law

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

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

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

What is To Be Done?

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

 

Image: Freepik.com

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

Social Media Addiction

Social Media was created as an educational and informational resource for American Citizens. Nonetheless, it has become a tool for AI bots and tech companies to predict our next moves by manipulating our minds on social media apps. Section 230 of the Communications Decency Act helped create the modern internet we use today. However, it was initially a 1996 law that regulated online pornography. Specifically, Section 230 provides legal immunity from liability for internet services and users for content posted online. Tech companies do not just want to advertise to social media users but instead want to predict a user’s next move. The process of these manipulative tactics used by social media apps has wreaked havoc on the human psyche and destroyed the social aspects of life by keeping people glued to a screen so big tech companies can profit off of it. 

Social media has changed a generation for the worse, causing depression and sometimes suicide, as tech designers manipulate social media users for profit. Social media companies for decades have been shielded from legal consequences for what happens on their platforms. However, due to recent studies and court cases, this may be able to change and allow for big tech social media companies to be held accountable. A former Facebook employee, France Haugen, a whistleblower to the Senate, stated not to trust Facebook as they knowingly pushed products that harm children and young adults to further profits, which Section 230 cannot sufficiently protect. Haugen further states that researchers at Instagram (a Facebook-owned Social Media App) knew their app was worsening teenagers’ body images and mental health, even as the company publicly downplayed these effects.

There is a California Bill, Social Media Platform Duty to Children Act, that aims to make tech firms liable for Social media Addiction in children; this would allow parents and guardians to use platforms that they believe addicted children in their care through advertising, push notifications and design features that promote compulsive use, particularly the continual consumption of harmful content on issues such as eating disorders and suicide. This bill would hold companies accountable regardless of whether they deliberately designed their products to be addictive.

Social Media addiction is a psychological, behavioral dependence on social media platforms such as Instagram, Snapchat, Facebook, TikTok, bereal, etc. Mental Disorders are defined as conditions that affect ones thinking, feeling, mood, and behaviors. Since the era of social media, especially from 2010 on, doctors and physicians have had a hard time diagnosing patients with social media addiction and mental disorders since they seem to go hand in hand. Social Media addiction has been seen to improve mood and boost health promotions with ads. However, at the same time, it can increase the negative aspects of activities that the youth (ages 13-21) take part in. Generation Z (“Zoomers”) are people born in the late 1990s to 2010s with an increased risk of social media addiction, which has been linked to depression. 

A study measured the Difficulties in Emotion Regulation Scale (“DEES”) and Experiences in Close Relationships (“ECR”) to characterize the addictive potential that social media communication applications have based on their measure of the brain. The first measure in the study was a six-item short scale consisting of DEES that was a 36-item, six-factor self-report measure of difficulties, assessing

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

The second measure is ECR-SV which includes a twelve-item test evaluating adult attachment. The scale comprised two six-item subscales: anxiety and avoidance. Each item was rated on a 7-point scale ranging from 1 = strongly disagree to 7 = strongly agree, which is another measure of depression, anxiety, and mania were DSM-5. The results depict that scoring at least five of the nine items on the depression scale during the same two-week period classified depression. Scoring at least three of the six symptoms on the anxiety scale was to sort anxiety. Scoring at least three of the seven traits in the mania scale has classified mania. 

The objectives of these studies were to clarify that there is a high prevalence of social media addiction among college students and confirms statistically that there is a positive relationship between social media addiction and mental disorders by reviewing previous studies. 

The study illustrates that there are four leading causes of social media abuse: 1)The increase in depression symptoms have occurred in conjunction with the rise of smartphones since 2007, 2) Young people, especially Generation Z, spend less time connecting with friends, and they spend more time connecting with digital content. Generation Z is known for quickly losing focus at work or study because they spend much time watching other people’s lives in an age of information explosion. 3) An increase in depression is low self-esteem when they feel negative on Social Media compared to those who are more beautiful, more famous, and wealthier. Consequently, social media users might become less emotionally satisfied, making them feel socially isolated and depressed. 4) Studying pressure and increasing homework load may cause mental problems for students, therefore promoting the matching of social media addiction and psychiatric disorders. 

The popularity of the internet, smartphones, and social networking sites are unequivocally a part of modern life. Nevertheless, it has contributed to the rise of depressive and suicidal symptoms in young people. Shareholders of social media apps should be more aware of the effect their advertising has on its users. Congress should regulate social media as a public policy matter to prevent harm, such as depression or suicide among young people. The best the American people can do is shine a light on the companies that exploit and abuse their users, to the public and to congress, to hold them accountable as Haugen did. There is hope for the future as the number of bills surrounding the topic of social media in conjunction with mental health effects has increased since 2020. 

Shadow Banning Does(n’t) Exist

Shadow Banning Doesn’t Exist

#mushroom

Recent posts from #mushroom are currently hidden because the community has reported some content that may not meet Instagram’s community guidelines.

 

Dear Instagram, get your mind outta the gutter! Mushrooms are probably one of the most searched hashtags in my Instagram history. It all started when I found my first batch of wild chicken-of-the-woods mushrooms. I wanted to learn more about mushroom foraging, so I consulted Instagram. I knew there were tons of foragers sharing photos, videos, and tips about finding different species. But imagine not being able to find content related to your hobby?

What if you loved eggplant varieties? But nothing came up in the search bar? Perhaps you’re an heirloom eggplant farmer trying to sell your product on social media? Yet you’ve only gotten two likes—even though you added #eggplantman to your post. Shadow banned? I think yes.

The deep void of shadow banning is a social media user’s worst nightmare. Especially for influencers whose career depends on engagement. Shadow banning comes with so many uncertainties, but there are a few factors many users agree on:

      1. Certain posts and videos remain hidden from other users
      2. It hurts user engagement
      3. It DOES exist

#Shadowbanning

Shadow banning is an act of restricting or censoring a user’s content on social media without notifying the user. This usually occurs when a user posts content deemed inappropriate or it violates the platform’s guidelines. If a user is shadow banned, the user’s content is only visible to the user and their followers.

Influencers, artists, creators, and business owners are vulnerable victims to the shadow banning void. They depend the most on user engagement, growth, and reaching new audiences. As much as it hurts them, it also hurts other users searching for this specific content. There’s no clear way of telling whether you’ve been shadow banned. You don’t get a notice. You can’t make an appeal to fix your lack of engagement. However, you will see a decline in engagement because no one can see your content in their feeds.

According to the head of Instagram, Adam Mosseri, “shadow banning is not a thing.” In an interview with the Meta CEO, Mark Zuckerberg, he stated Facebook has “no policy that is shadow banning.” Even a Twitter blog stated, “People are asking us if we shadow ban. We do not.” There is no official way of knowing if it exists, but there is evidence it does take place on various social media platforms.

#Shadowbanningisacoverup?

Pole dancing on social media probably would have been deemed inappropriate 20 years ago. But this isn’t the case today. Pole dancing is a growing sport industry. Stigmas associating strippers with pole dancing is shifting with its increasing popularity and trendy nature. However, social media standards may still be stuck in the early 2000s.

In 2019, user posts with hashtags including #poledancing, #polesportorg, and #poledancenation were hidden from Instagram’s Explore page. This affected many users who connect and share new pole dancing techniques with each other. It also had a huge impact on businesses who rely on the pole community to promote their products and services: pole equipment, pole clothing, pole studios, pole sports competitions, pole photographers, and more.

Due to a drastic decrease in user engagement, a petition directing Instagram to stop pole dancing censorship was circulated worldwide. Is pole dancing so controversial it can’t be shared on social media? I think not. There is so much to learn from sharing information virtually, and Section 230 of the Communications Decency Act supports this.

Section 230 was passed in 1996, and it provides limited federal immunity to websites from lawsuits if a user posts something illegal. This means that if User X decides to post illegal content on Twitter, the Twitter platform could not be sued because of User X’s post. Section 230 does not stop the user who posted such content from being sued, so User X can still be held accountable.

It is clear that Section 230 embraces the importance of sharing knowledge. Section 230(a)(1) tells us this. So why would Instagram want to shadow ban pole dancers who are simply sharing new tricks and techniques?

The short answer is: It’s inappropriate.

But users want to know: what makes it inappropriate?

Is it the pole? A metal pole itself does not seem so.

Is it the person on the pole? Would visibility change depending on gender?

Is it the tight clothing? Well, I don’t see how it is any different from my 17  bikini photos on my personal profile.

Section 230 also provides a carve-out for sex-related work, such as sex trafficking. But this is where the line is drawn between appropriate and inappropriate content. Sex trafficking is illegal, but pole dancing is not. Instagram’s community guidelines also support this. Under the guidelines, sharing pole dancing content would not violate it. Shadow banning clearly seeks to suppress certain content, and in this case, the pole dancing community was a target.

Cultural expression also battles with shadow banning. In 2020, Instagram shadow banned Caribbean Carnival content. The Caribbean Carnival is an elaborate celebration to commemorate slavery abolition in the West Indies and showcases ensembles representing different cultures and countries.

User posts with hashtags including #stluciacarnival, #fuzionmas, and #trinidadcarnival2020 could not be found nor viewed by other users. Some people viewed this as suppressing culture and impacting tourism. Additionally, Facebook and Instagram shadow banned #sikh for almost three months. Due to numerous user feedback, the hashtag was restored, but Instagram failed to state how or why the hashtag was blocked.

In March 2020, The Intercept obtained internal TikTok documents alluding to shadow banning methods. Documents revealed moderators were to suppress content depicting users with “‘abnormal body shape,’ ‘ugly facial looks,’ dwarfism, and ‘obvious beer belly,’ ‘too many wrinkles,’ ‘eye disorders[.]'” While this is a short excerpt of the longer list, this shows how shadow banning may not be a coincidence at all.

Does shadow banning exist? What are the pros and cons of shadow banning?

 

 

 

Corporate Use of Social Media: A Fine Line Between What Could-, Would-, and Should-be Posted

 

Introduction

In recent years, social media has taken a hold on nearly every aspect of human interaction and turned the way we communicate on its head. Social media apps’ high speed capability of disseminating information instantaneously have affected the way many sectors of business operate. From entertainment, social, environmental, educational, or financial, social media has bewildered the legal departments of many in house general counsels across all industries. Additionally, the generational shaft between the person actually posting for the account versus their supervisor has only exacerbated the potential for communications to miss their mark and cause controversy or adverse effects.

These days, most companies have social media accounts, but not all accounts are created equal, and they certainly are not all monitored the same. In most cases, these accounts are not regulated at all except by their own internal managers and #CancelCulture. Depending on the product or company, social media managers have done their best to stay abreast of changes in popular hashtags, trends and challenges, and the overall shift from a corporate tone of voice to one of relatability–more Gen-Z-esque, if you will. But with this shift, the rights and implications of corporate speech through social media has been put to the test.

Changes in Corporate Speech on Social Media 

In the last 20 years, corporate use of social media has become a battle of relevance. With the decline of print media, social media, and its apps, have emerged as a marketing necessity. Early social media use was predominantly geared towards social purposes. If we look at the origins of Facebook, Myspace, and Twitter it is clear that these apps were intended for superficial uses—not corporate communications—but this all changed with the introduction of LinkedIn, which sparked a dynamic shift towards business and professional use of social media.

Today social media is used to report on almost every aspect of our lives, from disaster preparation and emergency responses to political updates, to dating and relationship finders, and customer service based tasks, social media truly covers all. It is also more common now days to get backlash for not speaking out or using social media after a major social or political movement occurs. Social media is also increasingly being used for research with geolocation technology, for organizing demonstrations and political unrest, and in the business context, for development in sales, marketing, networking, and hiring or recruiting practices.

These changes are starting to lead to significant conversations in the business world when it comes to company speech, regulated disclosures and First Amendment rights. For example, so far, there is minimal research on how financial firms disseminate communications to investor news outlets via social media and in which format they are being responded to. And while some may view social media as an opportunity to further this kind of investor outreach, others have expressed concerns that disseminating communications in this manner could result in a company’s loss of control over such communications entirely.

The viral nature of social media allows not just investors to connect more easily with companies but also with individuals who may not directly follow that company and would therefore be a lot less likely to be informed about a company’s prior financial communications and the importance of any changes. This creates risk for a company’s investor communications via social media because of the potential to spread and possibly reach uniformed individuals which could in turn produce adverse consequences for the company when it comes to concerns about reliance and misleading information.

Corporate Use, Regulations, and Topics of Interest on Social Media 

With the rise of social media coverage on various societal issues, these apps have become a platform for news coverage, political movements, and social concerns and, for some generations, a platform that replaces traditional news media almost entirely. Specifically, when it comes to the growing interest in ESG related matters and sustainable business practices, social media poses as a great tool for information communication. For example, the Spanish company Acciona has recently been reported by the latest Epsilon Icarus Analytics Panel on ESG Sustainability, as having Spain’s highest resonating ESG content of all their social networks. Acciona demonstrates the potential leadership capabilities for a company to fundamentally impact and effectuate digital communications on ESG related topics. This developing content strategy focuses on brand values, and specifically, for Acciona, strong climate-change based values, female leadership, diversity, and other cultural, societal changes which demonstrates this new age of social media as a business marketing necessity.

Consequentially, this shift in usage of social media and the way we treat corporate speech on these platforms has left room for emerging regulation. Commercial or corporate speech is generally permissible under Constitutional Free Speech rights, so long as the corporation is not making false or misleading statements. Section 230 provides broad protection to internet content providers from accountability based on information disseminated on their platform. In most contexts, social media platforms will not be held accountable for the consequences resulting therefrom (i.e. a bad user’s speech). For example, a recent lawsuit was dismissed in favor of the defendant, TikTok, and its parent company, after a young girl died from participation in a trending challenge that went awry because under § 230 the platform was immune from liability.

In essence, when it comes to ESG-related topics, the way a company handles its social media and the actual posts they put out can greatly affect the company’s success and reputation as often ESG focused perspectives affect many aspects of the operation of the business. The type of communication, and coverage on various issues, can impact a company’s performance in the short term and long term hemispheres–the capability of which can effectuate change in corporate environmental practices, governance, labor and employment standards, human resource management and more.

With ESG trending, investors, shareholders, and regulators now face serious risk management concerns. Companies must now, more publicly, address news concerning their social responsibilities, on a much more frequent basis as ESG concerns continue to rise. Public company activities, through Consumer Service Reports, are mandated in annual 10-K filings and disclosures by the SEC, along with ESG disclosures thanks to a recent rule promulgation. These disclosures are designed to hold accountable and improve environmental, social, and economic performance when it comes to their respective stakeholders’ expectations.

Conclusion

In conclusion, social media platforms have created an entirely new mechanism for corporate speech to be implicated. Companies should proceed cautiously when covering social, political, environmental, and related concerns and their methods of information dissemination as well as the possible effects their posts may have on business performance and reputation overall.