Richmond Journal of Law and Technology

The first exclusively online law review.

Author: Madison Jennings

Youtube, You Disclose

youtube and apps

By: Brad Stringfellow,

 

The FTC is cracking down on social media ads and seeking to enforce proper disclosure amongst celebrity endorsers and advertisers. The means by which people connect with one another seem to be expanding at an ever-increasing rate. As conventional media loses its predominant grasp on consumer attention, advertisers have sought alternative means to promote their products. The FTC is doing its best to step in and regulate advertisements across all platforms, including social media.

 

Under the Federal Trade Commission Act, the FTC has been granted the broad authority to regulate “unfair or deceptive practices in or affecting commerce.”[1] FTC guidelines can be boiled down to four basic principles that all advertisements must meet: “1) Advertisements must be truthful and not misleading; 2) Advertisements may not be unfair or deceptive; 3) Advertisers must substantiate all claims, whether express or implied; 4) Any disclosures necessary to make an advertisement accurate must be clear and conspicuous.”[2]

 

The FTC has been putting in a fair amount of effort to adapt to changes in the digital landscape, and has done a fair job of doing so for a federal agency. The most recent change was put into place in December 2015 regarding deceptive formatting.[3] The FTC has been focusing heavily on proper disclosures within all social media. A handy, non-technical guide has been created by the FTC and put on their website to help people understand how to properly disclose promoted material.[4]

 

Social media stars who promote products or services are dubbed influencers.[5] Because of the personal nature of social media accounts and the much more informal atmosphere, disclosures are all the more important for the public to know when an influencer is sharing on honest opinion or hawking a product. The FTC guide gives a handy example of the weight you would give to the opinion of a travel blogger who paid from their own pocket to stay at a resort versus the opinion of a travel blogger paid by the resort.[6]

 

One is obligated to follow the guidelines if they have a “material connection” to an advertiser; this can be met by receiving gifts or being related to someone at the company.[7] The guide requires that a disclosure be made when a lack of disclosure misleads “a significant minority” of consumers.[8]

 

Anticipating questions of constrained formats, such as Twitter, the guide points out that “sponsored” and “promotion” are only nine characters, “paid ad” is only seven characters, and that “#ad” or starting the tweet with “Ad:” is only three characters: the FTC does not require specific words to meet the disclosure threshold, but does provide simple suggestions for fulfilling it.[9] In situations where a disclosure is not possible, such as adding a “Like” to a company or product, the FTC recommends against such acts.[10] It is interesting to note that making a three hour video endorsing a product is acceptable with one spoken sentence disclosing your relationship, but a simple tap of your thumb giving a heart symbol to a product page is impossible to disclose.

 

In order to demonstrate the seriousness with which they take these guidelines, the FTC has pursued several social media campaigns that made insufficient efforts to disclose. The FTC recently reached a settlement with Warner Brothers over the promotion of a video game advertised by several Youtube influencers.[11] While Warner Brothers, through an ad agency, instructed the influencers to include a disclosure statement buried in the video description box; the FTC found this insufficient and pursued a civil action.[12] Earlier in the year, the FTC went after Lord & Taylor, clothing manufacturers, who used fashion bloggers to promote a sundress from a new line.[13] While the company instructed the influencers to include the company name and dress line in the Instagram posts, the FTC found this as an insufficient disclosure as it provided no indication the influencers were paid for the post.[14]

 

Several media watch dog groups have also taken action to help enforce policy guidelines. Three such watch dog groups have filed complaints with the FTC regarding sponsored content targeted towards children.[15] Following the line of reasoning of harsh censures on advertisers of Saturday morning cartoons in the 1980s, the groups petition strict guidelines or outright banning of sponsored content coming from Disney and Dreamworks through various agents.[16] No action has been taken by the FTC yet.[17] Likewise, another watch dog group found over 100 instances of paid product placement with improper disclosure by various members of the Kardashian family.[18] The Kardashians were given the option to delete improperly disclosed posts or face being turned in to the FTC.[19]

 

A few companies are recognizing the FTC’s efforts and are taking a pro-active approach in promoting disclosure. As of last month, Youtube has updated their sponsored content guidelines.[20] They have also added a few new features to help promote disclosure, such as the option to add a “sponsored content” line at the beginning of a video.[21] Electronic Arts (EA), a gaming software company has also put in place new policies.[22] EA now mandates that any influencer receiving any kind of benefit (free software, paid trips, gifts, etc) add watermarks or hashtags “Supported by EA” for content where EA has no editing rights, and “Advertisement EA” for content where EA does have editing rights.[23]

 

The FTC has established standards for the social media world, and has begun enforcing their policy. Advertisers are taking notice and beginning to take action. Hopefully, consumers will benefit and be better able to distinguish when they are advertised to.

 

 

 

 

[1] 15 USC § 45(a)(2).

[2] See Michael W. Schroeder. The FTC’s Crackdown on Social Media #Ads, Lex (Nov. 3, 2016), http://www.lexology.com/library/detail.aspx?g=a62ff1c5-c8fc-45f7-9eea-903be4ecac58.

[3] See id.

[4] See Fed. Trade Comm’n, The FTC’s Endorsement Guides: What People are Asking (last visited Nov. 23, 2016), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.

[5] See id.

[6] See id.

[7] See id.

[8] See id.

[9] See supra note 4, Fed. Trade Comm’n.

[10] See id.

[11] See Wendy Davis, Warner Bros. Finalize FTC Settlement Over Influencer Campaign, The Daily Online Examiner (Nov. 22, 2016, 5:14 PM), http://www.mediapost.com/publications/article/289543/warner-bros-finalizes-ftc-settlement-over-influen.html.

[12] See id.

[13] See id.

[14] See id.

[15] See Jon Fingas, FTC Complaint Blasts Disney, Google over Child Influencer Videos, Engadget (Oct. 24, 2016), https://www.engadget.com/2016/10/24/ftc-complaint-over-influencer-videos-targeting-kids/.

[16] See id.

[17] See id.

[18] See Janko Roettgers, Kardashians in Trouble Over Paid Product Endorsements on Instagram, Variety (Aug. 22, 2016, 10:52 AM), http://variety.com/2016/digital/news/kardashians-instagram-paid-ads-product-placements-1201842072/.

[19] See id.

[20] See Youtube, Paid Product Placements and Endorsements (last visited Nov. 23, 2016), https://support.google.com/youtube/answer/154235#paid_promotion_disclosure.

[21] See id.

[22] See Julia Alexander, EA puts Influencers in Check with Disclosure Rules for Sponsored Content, Polygon (Nov. 16, 2016, 4:00 PM), http://www.polygon.com/2016/11/16/13655180/ea-sponsored-content-youtube-twitch-disclosure.

[23] See id.

 

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Fake News on Facebook: Did it help put Donald Trump in the White House?

The front page of a newspaper with the headline "Fake News" which illustrates the current phenomena. Front section of newspaper is on top of loosely stacked remainder of newspaper. All visible text is authored by the photographer. Photographed in a studio setting on a white background with a slight wide angle lens.

By: Kaley Duncan,

 

BREAKING: “Surgeon General Warns: Drinking every time Trump lies during debate could result in acute alcohol poisoning.”[1] Would you click on it? This news article first appeared on the media outlet Raw Story and was shared by 243,371 people.[2] To some, this might be funny, but studies show that the general public is taking stock in fictional articles like this one.[3]

 

Dissemination of fake news articles posted to social media sites is on the rise. The most recent election cycle saw a host of hyperpartisan articles that were false or misleading.[4] In fact, fake news outperformed real news in the last six months leading up to the 2016 presidential election.[5] A study by BuzzFeed’s Craig Silverman uncovered “hyperpartisan Facebook pages are publishing false articles and misleading information at an alarming rate.”[6] Silverman analyzed Facebook users’ engagement by measuring the amount of likes, reactions, and shares any given article received.[7] The study showed that mainstream news – which did not post any “mostly false” content – received much less user engagement than misleading and false news sources.[8] Occupy Democrats, a left-wing site that boasts 4 million fans, put out 20.1% false or misleading articles.[9] Freedom Daily, a right-wing site with 1.3 million fans, put out 46.4% false or misleading articles.[10] Both Occupy Democrats and Freedom Daily received much more Facebook user engagement than any other site in the study, including mainstream news.[11]

 

So who are these fake news reporters and what are they gaining from misleading the public? The Washington Post interviewed Paul Horner, a fake news writer, who claims Donald Trump is in the White House because of him.[12] Horner makes around $10,000 a month writing and posting fake news stories.[13] He says websites like Google AdSense pay to keep his business going.[14] His stories generate a lot of user clicks which ad companies are willing to pay top dollar for.[15] The reason his business is doing so well? – “…There’s nothing you can’t write about now that people won’t believe,” said Horner. “I can write the craziest thing about Trump, and people will believe it. They don’t fact-check.”[16] In November, Horner posted a story about a protester who got paid $3,500 to protest a Trump rally. His fake story got picked up and retweeted by Trump’s campaign manager Corey Lewandowski.[17] “I made that up. I’ve gone to Trump protests – trust me, no one needs to get paid to protest Trump,” said Horner in reference to the story. [18] The influx of fake stories led some to believe that the articles influenced Facebook users, thereby impacting the election results. Horner is one such person.[19] However, Facebook founder Mark Zuckerberg, disagrees. “I think the idea that fake news on Facebook, which is a very small amount of content, influences the election in any way…is a pretty crazy idea.”[20]

 

According to some sociologists, Zuckerberg may be right. A phenomenon called confirmation bias suggests that people often click on articles that validate their existing beliefs.[21] Facebook’s algorithm is designed to post articles to users’ walls that are consistent with their interests.[22] If this is true, fake articles may not have persuaded anyone, rather just concreted their already existing beliefs.[23] On the other hand, some believe that the sharing of hyperpartisan stories with false information, could further polarize an already divided nation.[24] If nothing else, fake stories will likely add to the growing distrust of the media.[25]

 

A study by Pew Research Center states that 61% of millennials rely on Facebook for their political news.[26] With such heavy reliance, many agree that some sort of regulations need to be implemented. The question is how. Governments abroad block Facebook and other forms of social media during election cycles.[27] Such an extreme solution would not be acceptable in a democratic society. Some have suggested the answer is to re-institute some form of the Fairness Doctrine for social media.[28] The Fairness Doctrine was introduced by the Federal Communications Commission in 1949 requiring broadcast licensees to cover issues of public importance fairly.[29] This meant that when covering political news, broadcasters had to give equal air time to both sides.[30] While this may seem like a good idea, many scholars believe that the Fairness Doctrine violated freedom of speech and stifled diversity in the media, which is ultimately why it was repealed in 1987.[31]

While the Fairness Doctrine may not be the answer, big companies are looking for ways to reform. Google announced that it was going to cut off fake news sites from advertising in hopes that the practice of such reporting will run dry without adequate funding.[32] Facebook’s Zuckerberg is more hesitant. Possibly because Facebook has been criticized in the past for allegedly suppressing conservative news stories.[33] Since then, the company has been careful when it comes to skewing the trending page results.[34] “Identifying the ‘truth’ is complicated…I believe we must be extremely cautious about becoming arbiters of truth ourselves,” said Zuckerberg in a recent post on Facebook responding to the public’s demand for reform.[35]

 

Some are looking for less drastic, alternate solutions. For instance, a group of college students came up with a program they call FiB which uses an algorithm to identify and flag potentially fake or misleading articles.[36] Once a fake article is identified, the program then provides the user with a list of more credible sources from which to gather information.[37] The program is not yet fully developed, but could be a promising solution to this fake news epidemic.[38] Until then, as social media users, you must be weary of your media consumption. Communications experts Dr. Melissa Zimdars and Alexios Mantzarlis say to beware of highly partisan news, shocking headlines, and have a healthy amount of skepticism in general when reading articles posted to Facebook or other forms of social media.[39] In our two-way communication system, we as the audience must demand more from our news. Clicking on click-bait articles with flashy headlines will only feed the growing fake news epidemic that has distorted the free flow of information.

 

 

 

[1] Nathan Wellman, Surgeon General Warns: Drinking Every Time Trump Lies During Debate Could Result in Acute Alcohol Poisioning, U.S. Uncut (Sept. 26, 2016), http://usuncut.com/news/surgeon-general-warns-drinking-every-time-trump-lies-debate-result-acute-alcohol-poisoning/

[2] See Wellman, supra note 1.

[3] See Mathew Ingram, Here’s Why Stamping Out Fake News is a lot Harder Than You Think, Fortune (Nov. 17, 2016).

[4] See Craig Silverman et al., Hyperpartisan Facebook Pages are Publishing False and Misleading Information at an Alarming Rate, BuzzFeedNews (Oct. 20, 2016), https://www.buzzfeed.com/craigsilverman/partisan-fb-pages-analysis?utm_term=.pij128P2k#.mkrZDVLDA.

[5] See Timothy Lee, The Top 20 Fake News Stories Outperformed Real News at the End of the 2016 Campaign, Vox (Nov. 16, 2016), http://www.vox.com/new-money/2016/11/16/13659840/facebook-fake-news-chart.

[6] See Craig Silverman et al., supra note 4.

[7] See Id.

[8] See Id.

[9] See Id.

[10] See Id.

[11] See Craig Silverman et al., supra note 4.

[12] See Caitlin Dewey, Facebook Fake-News Writer: ‘I think Donald Trump is in the White House because of me’, The Washington Post (Nov. 17, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/11/17/facebook-fake-news-writer-i-think-donald-trump-is-in-the-white-house-because-of-me/.

[13] See Id.

[14] See Id.

[15] See Google AdSense, https://www.google.com/adsense/start/how-it-works/ (last visited Nov. 22, 2016).

[16] See Dewey, supra note 12.

[17] See Id.

[18] See Id.

[19] See Id.

[20] See Paul Mozur & Mark Scott, Fake News in U.S. Election? Elsewhere, That’s Nothing New, The N.Y. Times (Nov. 17, 2016), http://www.nytimes.com/2016/11/18/technology/fake-news-on-facebook-in-foreign-elections-thats-not-new.html?_r=0.

[21] See Scott Bixby, ‘The end of Trump’: how Facebook deepens millennials’ confirmation bias, The Guardian (Oct. 1, 2016), https://www.theguardian.com/us-news/2016/oct/01/millennials-facebook-politics-bias-social-media.

[22] See Colby Itkowitz, Fake News on Facebook is a Real Problem. These College Students Came Up with a Fix in 36 Hours, The Washington Post (Nov. 18, 2016), http://www.denverpost.com/2016/11/18/fake-news-facebook-college-students-solution.

[23] See Kia Kokalitcheva, Mark Zuckerberg Says Fake News on Facebook Affecting the Election is a ‘Crazy, Fortune (Nov. 11, 2016), http://fortune.com/2016/11/11/facebook-election-fake-news-mark-zuckerberg.

[24] See Brian Hughes, How to Fix the Fake News Problem, CNN (Nov. 16, 2016), http://www.cnn.com/2016/11/16/opinions/how-to-fix-the-fake-news-problem-hughes.

[25] See generally Amy Mitchell et al., Millenials and Political News: Social Media – the Local TV for the Next Generation?, Pew Research Center: Journalism & Media, (2015), http://www.journalism.org/2015/06/01/appendix-a-within-each-generation-more-similarities-than-differences/ (discussing trends in how the public consumes political news including the growing distrust in the news).

[26] See Id at 1.

[27] See Mozur & Scott, supra note 20.

[28] See Frank Miniter, Beware of the Mainstream Media’s Solution to ‘Fake News’, Forbes (Nov 17, 2016), http://www.forbes.com/sites/frankminiter/2016/11/17/beware-of-the-mainstream-medias-solution-to-fake-news/#357f645742ac.

[29] See Kathleen Ruane, Congressional Research Service, Fairness Doctrine: History and Constitutional Issues, at 2 (2011), http://fas.org/sgp/crs/misc/R40009.pdf.

[30] See Id.

[31] See Miniter, supra note 28.

[32] See Timothy Lee, Facebook’s Fake News Problem, Explained, Vox ( Nov. 16, 2016), http://www.vox.com/new-money/2016/11/16/13637310/facebook-fake-news-explained.

[33] See Philip Bump, Did Facebook Bury Conservative News? Ex-staffers say yes., The Washington Post (May 9, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/05/09/former-facebook-staff-say-conservative-news-was-buried-raising-questions-about-its-political-influence.

[34] See Id.

[35] See Mark Zuckerberg, Facebook (Nov. 12, 2016, 10:15 PM), https://www.facebook.com/zuck/posts/10103253901916271.

[36] See Itkowitz, supra note 22.

[37] See Id.

[38] See Id.

[39] See AJ Willingham, Here’s How to Outsmart Fake News in Your Facebook Feed, CNN (Nov. 18, 2016), http://www.cnn.com/2016/11/18/tech/how-to-spot-fake-misleading-news-trnd.

 

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Still Texting and Driving? Think Again.

wenrich-picture

By: Sarah Wenrich,

Each state is able to create its own laws regarding cellphone use for drivers of motor vehicles, but 46 out of the 50 states plus Washington D.C. have prohibited the act of “texting while driving” for all drivers other than those in emergency vehicles. [1] As texting while driving has been shown to slow a driver’s reaction time as much as drinking four beers [2] and is also the cause of one out of every four accidents[3], this ban should come as no surprise.

In New York (as well as fourteen other states and the District of Columbia), there is also a statute that bans using hand held phone while driving, including talking on a hand held device. [4] This law extends to the use of a cell phone while stopped at a red light or in a tollbooth.[5] However, this behavior is still difficult for officers to observe, leaving the law enforced less often then it should be. [6] To combat this, a bill has been introduced in the New York Senate that would allow for the use of a device, currently being referred to as a “textalyzer,” to analyze a driver’s phone either when the driver is pulled over and suspected of using a phone while driving or after an accident occurs. [7] In pushing for this law, New York legislators are pursuing a theory of implied consent such that when you receive your driver’s license, you are implicitly giving consent to be subjected to a future textalyzer examination. [8]

The textalyzer would connect to the cell phone and relay to officers whether the cell phone was in use at the time in question. [9] Advocates for the use of the textalyzer address privacy concerns with this type of technology by arguing that it would not give the officers any access to personal data from the phone.[10] On the other side of the argument, people opposed to this technological probe into a person’s device express concern over the fact that a driver may not be able to recognize when more information is being passed onto law enforcement officers without their knowledge.[11] While it has not yet been voted on in legislative session, it could have effects that reach far beyond the borders of New York.

The state of Virginia is another state that prohibits texting while driving for drivers of any age.[12] The current law in Virginia prohibits drivers from “manually [entering] multiple letters or text in the device as a means of communicating with another person” [13] and from “[reading] any email or text message transmitted to the device or stored within the device.” [14] However, this law does not apply when the vehicle is legally stopped, allowing people at stoplights to text and email behind the wheel without penalty. [15] Additionally, because this law allows the use of a hand held phone for talking or GPS purposes, enforcement of this law is incredibly difficult. [16] If a police officer sees someone texting while driving, the driver can avoid a citation by either telling the officer he was not on the phone at all or that he was using it for a legal purpose.[17] If New York passes the use of the textalyzer technology, it could be an appealing option for police officers in Virginia to effectively enforce the ban on texting and driving.

While it is very challenging to enact new highway safety laws in Virginia,[18] this technology would not ban any new act by a driver; it would simply allow for the enforcement of the Virginia law already in place that bans texting and driving. The final textalyzer device has not yet been produced, but the CEO of Cellebrite Technology (the company that would produce the textalyzer) says that it will not be technologically challenging to produce.[19] Because the textalyzer technology could have the ability to analyze different applications and the activity in any or all of those applications,[20] slightly different versions could be adopted on a state-to-state basis in order to accommodate each state’s law.

The textalyzer may seem like a crazy and potentially invasive tactic for cracking down on law-breakers, but when texting and driving causes 11 teen deaths per day,[21] it may be what it takes to make people second guess grabbing their phone from behind the wheel. Unfortunately, if knowing that texting while driving causes 1.6 million accidents and 330,000 injuries per year[22] doesn’t stop a driver from texting, it’s unlikely that increased enforcement of the current law will do the trick.

 

 

[1] See Distracted Driving Laws, Governors Highway Safety Association, http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html (last visited October 30, 2016).

[2] See Texting and Driving Statistics, Texting and Driving Safety, http://www.textinganddrivingsafety.com/texting-and-driving-stats (last visited Nov. 3, 2016).

[3] See Cell Phone Use While Driving, Edgar Snyder & Associates, https://www.edgarsnyder.com/car-accident/cause-of-accident/cell-phone/cell-phone-statistics.html (last visited Nov. 2, 2016).

[4] See Distracted Driving Laws, supra note 1.

[5] See Matt Richtel, Texting and Driving? Watch Out for the Textalyzer, The New York Times (Apr. 27, 2016), http://www.nytimes.com/2016/04/28/science/driving-texting-safety-textalyzer.html?_r=0.

[6] See NEW YORK STATE’S MOBILE PHONE and PORTABLE ELECTRONIC DEVICE LAWS, Governor’s Traffic Safety Committee, http://safeny.ny.gov/phon-ndx.htm (last visited Oct. 30, 2016).

[7] See Karen Turner, A proposed ‘textalyzer’ bill might give cops the right to access your cellphone, The Washington Post (Apr. 13, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/04/13/a-proposed-textalyzer-bill-might-give-cops-the-right-to-access-your-cellphone/.

[8] See Richtel, supra note 5.

[9] Id.

[10] See Bruce Brown, Using your phone while driving may be stupider than ever, Digital Trends (Apr. 12, 2016, 5:38 AM), http://www.digitaltrends.com/mobile/cellebrite-textalyzer-driving-mobile-test-news/.

[11] See Turner, supra note 7.

[12] See Distracted Driving Laws, supra note 1.

[13] See Va. Code Ann. § 46.2-1078.1(A)(1) (2016).

[14] See Id at (A)(2).

[15] See What is the law on Texting While Driving in Virginia and What Does it Really Mean?, McGlone Law Firm, P.C., http://www.mcglonelaw.com/faqs/what-is-the-driving-while-texting-dwt-law-in-virginia-.cfm (last visited Oct. 30, 2016).

[16] Id.

[17] See Ashley Halsey III, Virginia’s new texting-while-driving law contains loophole, The Washington Post (Apr. 11, 2013), https://www.washingtonpost.com/local/trafficandcommuting/virginias-new-texting-while-driving-law-contains-loophole/2013/04/10/63bb64a2-a05a-11e2-82bc-511538ae90a4_story.html.

[18] Id.

[19] See Richtel, supra note 5.

[20] See Brown, supra note 10.

[21] See Texting and Driving Statistics, supra note 2.

[22] Id.

 

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