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By: Elizabeth Hosmer
Member, American Journal of Trial Advocacy
Social media has grown exponentially into a basic part of everyday American life, and it has become increasingly difficult to find someone who is “unplugged” and without some sort of social media account.[1] Websites like Facebook, Twitter, Instagram, and LinkedIn are often the subject of debates and conversations about the benefits and pitfalls of the online world. These sites allow you to connect nationally and internationally with anyone with an internet connection, but these can be dangerous. From horror stories from true crime documentaries to connections with long-lost friends from school, everyone has heard the new-age arguments both for and against posting your life online. Besides the ability to make job connections in the legal world, the increase in social media has presented some issues stemming from constitutional and copyright laws. Because the increase in use of social media sites is still new, the “law in this area is still relatively unsettled and constantly changing . . . .”[2] Additionally, “[c]ourts have not created brand new rules and paradigms to grapple with social media ubiquity and complexity, but rather have consistently applied existing legal standards to the social media [sites].”[3]
First Amendment Issues
The use, and possible abuse, of one’s First Amendment right of free speech extends to what is said online. Some states, such as New Hampshire, have passed laws to attempt to curb what a citizen posts.[4] A 2014 amendment prevented voters from posting pictures of their ballots online.[5] This law was struck down a year later using a strict-scrutiny standard of review in Rideout v. Gardner,[6] but one could see the problems that could be prevented by enacting such a law.[7] Of course, many do not want government control of online speech any more than governmental control of written or verbal speech, but posting online for the country and the world to see presents problems.
While “the same rules apply to obscenity and decency on social media as they do in the real world,” [8] obscene or indecent speech is more difficult to control online than in print. Social media sites have their own way of controlling what is posted via user reports, so it could be argued that a site is more able to control content than the government.[9] However, it is clear that there is no way to control everything posted on the internet. Illegal, obscene, or indecent posts are likely to pop up faster than they can be taken down and often spread virally in a matter of seconds.[10] Associated with this is the issue of cyberbullying. “Cyberbullying is bullying that takes place over digital devices . . . [and] includes sending, posting, or sharing negative, harmful, false, or mean content about someone else.”[11] Despite parental warnings, social media users often forget online posts can be found forever and will thus often post or comment content they would otherwise never say out loud.[12] Just like controlling posts made from the ballot box, state governments have sought to control cyberbullying through legislation.[13] In 2012 North Carolina enacted a statute to prevent and punish cyberbullying online.[14] In State v. Bishop,[15] the constitutionality of this statute was questioned, and the North Carolina Supreme Court found that online speech is no different from printed speech of any other kind; therefore, any attempt to control the speech is subject to the same analysis.[16] The court went on to find that the statute at issue “was not the least restrictive means” to protect children from online bullying.[17] While the constitutional implications of restricting speech and the accompanying analysis are important parts of the legal system, it is difficult to see how preventing harassment of children online would need to jump through so many hoops.
Copyright Issues
Another issue often presented in social media law is intellectual property and copyright infringement online. Laws such as 17 U.S.C. § 512 and 47 U.S.C. § 230 have been passed to address the issue of copyright infringement online. Section 512 removes liability from service providers
for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections . . . .[18]
The service provider must, however, have a way for the copyright owner to make a request for the content to be removed, and the provider cannot benefit financially from the infringement.[19] It makes sense to protect a service provider, such as a social media site, from liability when the users are truly responsible for the copyright infringement.[20] Because of the increase in use of copyrighted content online and the new statutes, social media sites have seen an influx of litigation regarding copyright infringement.[21] However, it would be difficult for the copyright owner to find and sue every social media user that illegally posted protected content without attributing the creator. It will be interesting to see what lies ahead for those that claim protection under Section 512 and the impact this will have on future copyrights.
Section 230 provides similar protection to service providers, such as social media platforms. However, Section 230 does not protect against copyright infringement, but it seems to reflect protection from “defamation, privacy, negligence and other tort claims.”[22] It also does not protect any service provider that helps “create or develop contested information.”[23] For example, in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,[24] the Ninth Circuit used a channeling test that questioned the channeling or filtering based on a website user’s profile and answers to questions.[25] This channeling test will also affect social media platforms that pair users with one another, such as suggested friends, based on their profiles. Based on the holding from Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, service providers could eventually be opened up to tort liability that results from such channeling, despite previous holdings otherwise.[26]
As a social media user, the statutory protections and immunities granted to social media platforms are not the same.[27] There are no provisions to protect social media users from suits for defamation or copyright infringement, so users will only be protected by their First Amendment rights, if applicable.[28]
The increase in the day-to-day use of social media and the internet as a whole will pose new challenges for legal professionals to overcome and understand. Doing so will require constant updates to stay on top of such a fast-paced and ever-changing facet of the law.
[1] The Law and Social Media, HG.org Legal Resources, https://www.hg.org/legal-articles/the-law-and-social-media-31695 (last visited Apr. 8, 2019).
[2] Understanding the Legal Issues for Social Networking Sites and Their Users, FindLaw, https://technology.findlaw.com/modern-law-practice/understanding-the-legal-issues-for-social-networking-sites-and.html (last visited Apr. 8, 2019).
[3] Christopher Escobedo Hart, Social Media Law: Significant Developments, 72 Bus. Law. 235, 235 (2016), https://foleyhoag.com/-/media/files/foley%20hoag/publications/articles/2016/hart_social%20media%20law_significant%20developments_aba_buslawyer_winter2016_17.ashx?la=en.
[4] Id. at 238 (citing N.H. Rev. Stat. Ann. § 659:35(1) (2019)).
[5] Id.
[6] 123 F. Supp. 3d 218, 229 (D.N.H. 2015).
[7] Hart, supra note 3, at 238.
[8] The Law and Social Media, supra note 1.
[9] See id.
[10] See generally Catherine Buni & Soraya Chemaly, The Secret Rules of the Internet: The Murky History of Moderation, and How It’s Shaping the Future of Free Speech, The Verge, https://www.theverge.com/2016/4/13/11387934/internet-moderator-history-youtube-facebook-reddit-censorship-free-speech (last visited Apr. 17, 2019) (“Yet this radically free internet quickly became a terrifying home to heinous content and the users who posted and consumed it.”).
[11] What is Cyberbullying?, stopbullying.gov (July 26, 2018), https://www.stopbullying.gov/cyberbullying/what-is-it/index.html.
[12] See generally id. (discussing the special concerns surrounding the prevalence of social media).
[13] Hart, supra note 3, at 238.
[14] N.C. Gen. Stat. Ann. §14-458.1 (West 2019).
[15] 787 S.E.2d 814 (N.C. 2016).
[16] Id. at 817.
[17] Hart, supra note 3, at 239; Bishop, 787 S.E.2d at 820.
[18] 17 U.S.C. § 512(a) (2012).
[19] Understanding the Legal Issue for Social Networking Sites and Their Users, supra note 2; 17 U.S.C. § 512(c) (2012).
[20] See Understanding the Legal Issue for Social Networking Sites and Their Users, supra note 2.
[21]Id.; The Law and Social Media, supra note 1.
[22] Understanding the Legal Issue for Social Networking Sites and Their Users, supra note 2; 47 U.S.C. § 230 (2012).
[23] Understanding the Legal Issue for Social Networking Sites and Their Users, supra note 2; 47 U.S.C. § 230 (2012).
[24] 521 F.3d 1157 (9th Cir. 2008).
[25] Id. at 1172; Understanding the Legal Issue for Social Networking Sites and Their Users, supra note 2.
[26] See Doe v. MySpace, Inc., 528 F.3d 413, 422 (5th Cir. 2008) (holding that the plaintiffs’ claims of negligence were barred by section 230).
[27] Understanding the Legal Issue for Social Networking Sites and Their Users, supra note 2.
[28] Id.
American Journal of Trial Advocacy 