How National Agencies & State Laws Regulate Social Media

Instructor: Scott Tuning

Scott has been a faculty member in higher education for over 10 years. He holds an MBA in Management, an MA in counseling, and an M.Div. in Academic Biblical Studies.

Because of its relative newness, social media and its related data are not yet fully litigated. This lesson describes some of the laws that already exist. It also explores some areas not yet fully decided.

The Power of Social Media (and its Overseers)

Social media refers to internet platforms that allow users to communicate various data such as texts, images, and videos. Examples of popular social media platforms include Facebook, Twitter, and Instagram. In many ways, social media is still unexplored territory as far as law and regulation are concerned. Specifically, there are still significant, undecided legal issues relating to free speech, data privacy, and fictitious news stories. Although the laws governing the use of social media by business are far from being fully decided, business leaders cannot afford to be uneducated about this topic because some laws do exist and are being enforced. Let's look at a few of the things we know about how the law regulates social media.

Social media is a relatively new issue in consumer protection law.
Cell Phone

Criminal Penalties for Cyber Bullying

In August 2017, a young woman named Michelle Carter was convicted in criminal court of involuntary manslaughter for her use of social media to encourage another individual to take his own life. Her sentence was 15 months in prison. The number of legal implications in this case and conviction sent ripples across the country as it marked one of the first cases in which there was a criminal conviction for simply encouraging someone to do something (arguably bullying) which that person ultimately carried out. This is an extreme example, but businesses face regulatory oversight for their use of social media as well. Although the issues affecting businesses will rarely be criminal, there are numerous opportunities for a business to face significant penalties for the misuse of social media.

Civil Penalties for Privacy Breaches

Perhaps closer to home for many businesses is the Facebook privacy debacle that occurred in 2017. Facebook founder Mark Zuckerberg was called to testify before Congress about the way his organization collected, maintained, and used personal data belonging to users. His testimony before the committee demonstrated something many business leaders already knew: it simply was not clear how much privacy was enough, and what the consequences for improper use of confidential information should be.

Settled Laws Regarding Social Media

While there is still significant confusion about, or a complete absence of, laws relating to social media use, there are some topics that regulators have already addressed in both the state and federal arena.

Laws Restricting the Use of Customer Data

One of the things that made the Facebook data privacy issues so significant was that the information maintained and distributed was not entirely known to Facebook users. In perhaps one of the worst examples, Facebook collected information about cell phones being used to access the platform, and then used that data for marketing initiatives. This was, of course, something far beyond what most Facebook users believed they had consented to. For this reason, many states have established legislation that prevents businesses from using social media platforms as a source for confidential customer information.

Laws Requiring Disclosure

There are also many laws already on the books regarding social media platforms to notify customers or users when nonpublic, personal information has been accessed or disseminated improperly. Unfortunately, the growth of technology has also fueled the ability to breach data warehouses and misappropriate their contents unlawfully. Since many social media platforms have sensitive customer information, the Federal Trade Commission and many state legislatures have laws or rules that govern consumer notification when it is lost, hacked, or stolen. These laws specify who must be notified of the breach, what steps must be taken to protect victims of the breach, and what long-term changes must be made to prevent further breaches.

Off-Duty Social Media Conduct and Demanding Social Media Passwords

Many employees have misconceptions about an employer's right to terminate them for off-duty social media posts. In most states, employers have great latitude in how they use and evaluate publicly available social media content. While they are often restricted from using confidential information, in many cases, employees can be disciplined or discharged for the content of social media posts. This is particularly true about posts that are discriminatory, bullying, or contain hate speech.

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