Category Archives: Cyberbullying

So You Want To See A Social Media Law Final? (2017 Edition)

It’s that special time of year again when I have just submitted the final grades for my Law & Social Media class at the University of Texas School of Law.  Hard to believe that I’ve been teaching it for five years now but every year brings something new to the area.  This year’s exam was inspired by some recent events, the Gabbing Geek podcast, and a few too many detective movies (well, really, all the Dresden Files books).  How would you have done?

Question One

She keeps looking out the dirty windows to make sure her Tesla isn’t being broken into. Your office is in that part of town, a part that she normally won’t be caught dead in. But here she is now.

“Mind if I smoke?” she asks, tapping on a silver cigarette holder that you thought only existed in black and white hard-boiled detective films.

“Yeah.” You toss your thumb to point at the giant “NO SMOKING” sign on the wall behind you. Right next to the “Social Media Fixer, Inc.” sign you used to hang on the outside door but too many people kept marking it up.

“They said you could help me,” she says in disbelief. Looking around the threadbare office, she looks like she’s been the victim of an online prank.

“Maybe,” you tell her. “Don’t judge me by the offices. I’m a big deal on Instagram. That was a joke.” You offer the last part because you’re not sure if she’s ever heard a joke, judging on the look she’s giving you. Or maybe you’re just telling it wrong.

“Fine,” she settles back into her chair. An impressive feat because you know how uncomfortable that chair feels. “I run an incredibly successful social media platform called Modular Academic Dreams Exist, Uniquely Personal. But everyone just calls it MADE-UP. We have hundreds of millions of users around the world. We allow them to share content with each other, interact with their friends’ posts, and even schedule events.”

“So, like Facebook,” you respond.

“Yes, but MADE-UP. Anyway, when we first launched we had one sentence for our Terms of Use: ‘Be cool.’ But now we realize that we need a more…robust document.”

“Might help,” you offer.

“Right. But I’m really not sure where to start. And I need to convince my Board of Directors to make the change. Could you give me some advice? Maybe start with three of the most important parts of the Terms of Use we should create, and some kind of strategy for rolling out those changes? Something I can take back to my Board because…” she glances out the window, “I doubt they’ll want to come here.”

“No problem,” you tell her. She leaves. You crack your knuckles and start typing.

Question Two

Six months later, the MADE-UP CEO is back in the uncomfortable chair. She left the Tesla at home this time, electing to take a taxi since Uber and Lyft still haven’t come back to this part of town. She looks about as comfortable as last time but just the fact that she’s back means you gave her good advice and she knows it.“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve

“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve really helped us out of some problems and our outside counsel say that without those Terms we would’ve been in a lot of trouble.” You try not to look too hurt to discover she’s hired other lawyers.

“But the one argument our other lawyers” ouch “keep facing is when users claim they never saw the new Terms. So we want to make a giant, splashy campaign all around the Terms. We don’t just want people to see them—we want them to WANT to see them!

“So I came up with a plan and everyone tells me it’s brilliant,” she smiles. Probably because you’re the CEO, I think, but wisely don’t say. She continues, “I want you to give me some honest feedback. It’s a two part plan.

“First, I want to create a graphic novel out of our Terms of Use. We’ll hire artists to create pages that copy other comic books, only instead of people talking or thinking or whatever they do in comic books, it’ll be our Terms instead. Since the pages will look like the most famous comic book heroes everyone will want to read it. We’ll use all the best heroes: Batman, Wonder Woman, Superman, Spider-Man, Wolverine, Madame Xanadu—the true icons of the industry!

“And then second, we’ll do something similar but with video. I know some digital artists who say they can take video clips from the hottest movies and TV shows and then alter the characters’ lips to show them reading our Terms. We’ll hire some celebrity impersonators to do the characters voices so it’ll look like these people in The Walking Dead or The Magicians or Better Call Saul are reading our Terms!”

You grimace. She notices.

“What?” she asks. “Tell me what’s wrong with that plan. Or tell me what works. Just tell me!”

You take a deep breath and tell her what you’ve been thinking.

Question Three

Another six months, another taxi drops off the MADE-UP CEO at your doorstep. Well, your landlord’s doorstep. She eyes the chair warily before sitting back down in it. You’ve been meaning to get a more comfortable chair. But you haven’t.

“I should have come to you sooner,” she starts. “Especially since you’ve given me such great advice before. But I’ve learned my lesson. We fired our General Counsel over this mess—help us fix this problem and the job is yours. I’m guessing it pays…” she adjusts herself in the uncomfortable chair, “Slightly more than your current wages.

“Our marketing team started working with the most influential users on our platform. People with tens of thousands of followers. We would connect those users with brands wanting to promote their products. It was a win-win situation, the marketing team told me.”

“Marketers,” you nod knowingly.

“Right. So we had this program. Brands pay us a few thousand dollars, we pass most of that money along to the users, and the users would post pictures and videos of themselves using the products. And we would help promote that content by giving it preferential viewing for anyone on our MADE-UP platform.

“About a dozen of the brands and the influential users in the program got some letter from the FTC. And now those brands are upset with us because we never told them about some need to disclose? Is that really a thing? I guess it is.

“Now we need to change our program so that our brand partners and influential users are following the disclosure rules. I need you to draft some kind of rules or communications or training or something so that I can make everyone understand what they need to do.

“Tell me what to do for our brands, for our users, and for my marketing department. Fix this and you’ll be our new General Counsel.”

You stand up and remove the “Social Media Fixer, Inc.” sign from the wall. You won’t be needing it anymore after you give her your advice.


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My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.


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Eight Social Media Rules For Kids

“Mommy? I need more Candy Crush lives!”

Coming up with rules for kids on social media is hard.  First, coming up with any set of rules for kids is hard as any parent can attest.  But when you’re talking about a complicated subject like social media it can be even trickier.  There are very real risks of kids not realizing what’s appropriate or not on social media or not realizing who can see their content.  There are also scary but not true stories about predators seeking kids on social media or other online boogeymen that even if we rationally don’t believe we also don’t want to be the one parent whose child actually faced the monster.

Even though I work in the social media space I hadn’t given the topic of social media rules for kids much thought until a co-worker (hat tip to Gretchen) asked me about it this week.  My boys are too young for any social media platforms and still young enough that their friends aren’t pressuring them to join.  But I know that will change and it will change faster than I want it too.  And while it may be a simple rule to say “No social media until you’re [AGE]!” I also know that social media is as much a part of young culture as it is adult culture.  Banning something isn’t as effective as teaching them the right way to do it.

But for young kids first experiencing social media it’s a huge topic to cover.  In some ways I compare it to driving a car–it’s a tool that everyone uses and it’s important to learn how to use it properly because bad things can happen if you mess around.  But in other ways this is a bad comparison–when a teenager learns to drive they’ve been sitting in a car as a passenger for many, many years.  Children first going online typically haven’t been a backseat passenger to their parents’ online activities so we have to teach them the rules of a road they’ve never been on.

This topic prompted me to post some initial rules for kids on social media which I invited comments on and then revised.  I share them here because it was a good conversation but let me make a few important call-outs.

  • As with any set of rules for kids, these are completely customizable for your family and your children.  I am not saying this is the right way to do it, this is just one way to start thinking about it.
  • The rules are written a bit strongly but that’s because social media is similar to a car that weighs several tons–use it correctly and you’re good.  One bad accident can have serious consequences.  I’m not trying to scare people, I’ve just worked long enough in the space to know better.  I imagine ambulance drivers and emergency room workers have similar conversations with their kids about driving motorcycles.
  • These are basic rules that I want to apply to all platforms but also to trigger a series of conversations about how to use social media.  That’s the basis of rule five. Nobody should think you can give these rules to a child and then they know what to do–this is the foundation for you to teach them about posting appropriate content, providing appropriate responses, and engaging with people they do or do not know in real life.  This is the start of the conversation, not the end or the totality.

That said, here are the Eight Rules.  If you have additions, please leave me a comment below.

  1. This is not your account, this is my account with your name on it.
  2. I will set the password and you will not change it. If the platform requires you to change it then you will come to me and I will change it for you.
  3. I will be monitoring your account. Don’t post or say anything that you don’t want me to see because I will see it. If you’d like something more private I’m happy to buy you a diary and a pen.
  4. When I say I will be monitoring your account I mean that I will be actively watching your account and so will many other people. All of these people, like me, have your best interest in mind when we stop you from doing unwise things.
  5. I understand you’ll be learning how to use social media and that the learning process is a journey so I will be patient and explain the things you should and shouldn’t do. You, in turn, need to understand that there are risks and concerns you can’t comprehend right now so while some of my advice may seem odd you will still need to follow it.
  6. If you ever have a question about posting something, ask me first. Social media is about conversations but it is also very different from the actual conversations you’ve had with family and friends. It takes time to learn but it’s better to ask first than regret later.
  7. I will warn you once before I remove your access to the account. Unless you do something really awful in which case you won’t get a warning. Trying to circumvent these rules (making another account, deleting accounts, etc.) is automatically awful.
  8. If you think these rules are strict just wait until we talk about driving when you’re 16.

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Filed under Cyberbullying, Kids, Privacy, Social Content, Social Media Risks, Social Platforms

Can Social Media Help You Break The Law In A Country You’ve Never Visited?

The world of free speech.

Yesterday was international Data Privacy Day–if you had no idea then it succeeded. Ironically, this annual campaign to increase awareness over data privacy falls right in the middle of one of the most interesting cases to impact social media privacy and personal data in many years.

The case deals with a number of anti-Semitic tweets that were being posted in French, allegedly by French users of Twitter. Unlike the United States which is highly permissive of hate speech (so long as the speech does not incite violence or is considered fighting words, among the few exceptions), France has specific hate speech laws that provide for both civil and criminal actions against those who defame or insult people based on ethnicity, nationality, religion, race, sexual orientation, or if they are handicapped.

Although the case ends in France (for now), it actually began in Germany when a Neo-Nazi group had access to their Tweets blocked to German users of Twitter in October 2012. At the start of 2012, Twitter rolled out functionality that allowed them to block specific content to countries with laws preventing those kinds of speech. Although initially subjected to scorn for this action by free speech advocates, Twitter pointed out that prior to this feature their only option was to take down tweets globally or leave them up globally. This new feature allowed a more targeted approach but also brought greater emphasis to the national differences in free speech protection.

This new feature was used by Twitter to block the Neo-Nazi group in October.  It was almost immediately followed up by requests from French organizations against similarly anti-Semitic tweets. Twitter complied with the requests and blocked the tweets to French users.  One of the groups involved with the French blockage was not content to merely have the tweets out of circulation–they wanted to go after the individuals posting the hateful content. The French Union of Jewish Students filed suit against Twitter in France demanding the personal information for specific Twitter accounts posting the anti-Semitic content. A judge heard the group’s argument last week and issued a ruling in their favor demanding that Twitter turns over the personal information for these accounts.

Twitter is reportedly considering the court’s decision.  They are not obligated to follow the order–Twitter has no offices in France so there’s no place for authorities to show up and demand action.  Twitter does, however, have many French users and sell advertising to companies in France–so there’s always the potential for the issue to escalate and impact Twitter’s operations within France.

But the case brings up some interesting questions and social media and the differences in legal protections.  We are accustomed to thinking of social media as knowing no boundaries but laws certainly know boundaries.  Speech that is legal in your country may be illegal somewhere else.  Whose law applies?  The country you live in?  The country Twitter operates in?  The country where the person who read your content lives?

Most of my readers are from the United States where we take freedom of speech for granted.  So think of it this way–what if one of your tweets was enough to have you sentenced to death by the courts of a foreign country?  And then that country asked Twitter for all the information they had on you.

Yeah, that’s a bit scary.

And it isn’t so far from the truth.  Egypt did sentence an American citizen to death for his role in a movie critical of Islam.  Given this individual’s reputation, he probably intended the movie to be a bit controversial.  But what if it happened to someone not trying to stir things up and then the foreign country asked Twitter to hand over the information?

I’m not saying this has happened or Twitter would comply.  Twitter has said that they comply with 63% of government requests which is a good amount shy of 100%.   Google just posted a great entry about how they handle government requests.  I do not envy them the work that must go into reviewing those requests.

Still, this French request is not without precedent.  In 2011, Twitter was served with a subpoena to turn over personal information for some users in the UK.  The request was made in relation to a case against some anonymous bloggers and was made two years after the case was initially filed (the case did mention the blogging platform but not Twitter, this seemed to be more of an angle to uncover information on the anonymous blogger).  Twitter told their user of the request and that the user had a few weeks to respond but when he didn’t Twitter turned over the information.

The catch is that the case involved some local politicians in the UK against an anonymous blogger in the UK but the lawsuit was filed in California (where the blogging platform and Twitter operate).  The user could have objected to Twitter turning over the information but would have needed a lawyer in California to make the objection.  Maybe we like that rule–California has some great sushi restaurants and some decent free speech protections.  But the concept of a court action that compels your information taking place thousands of miles from your home that would incur significant expense if you wanted to defend the release of that information is a bit concerning.  Granted, here there was a case in California (defamation and libel, mostly) and California doesn’t sentence people to death over speech, but the underlying notion of a case pending against you thousands of miles from your home is a bit alarming.

Social media has given us all a global stage for speaking to the world without the realization that the entire world might actually be listening and that our speech might be a crime.  While the world celebrated Data Privacy Day yesterday (somebody did, I’m guessing) we should keep an eye on a huge exception to privacy–court cases that can trigger the release of personal information based on laws in a country you’ve never visited.




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Filed under Cyberbullying, Europe, First Amendment, Google, Laws, Privacy, Social Content, Social Platforms, Twitter, UK

Social Media Has Screwed Up Anonymity

Anonymity used to be about not revealing information, like all that naked dancing you do behind your fence at noon.

Being anonymous is a powerful thing and can be used for many good purposes.  Sadly, social media seems to ignore virtually all of them.

Just yesterday I was blogging about how the systems that gave rise to social media created an environment where people are becoming disconnected from one another.  This is related to being anonymous because many platforms do not authenticate users so you have many people not using their name or any name.  The resulting disconnection can lead to cyberbullying and I wondered if perhaps the technology that brings people together is also driving some people apart through this disconnection.

But after considering two stories I’m also wondering if social media has completely screwed up anonymity and if there’s a way we can reclaim it.

Here’s the first story.  It’s a cute little tale about whether your dinner party needs a social media policy.  (Hat tip to my friend @MarcVock for sending me the story.)  The writer had a dinner party that included some social media heavyweights and the resulting photos, check-ins, and status updates resulted in potentially millions of people seeing details about a private event.  He got a text from someone wanting to stop by for the party while it was going on.  He later heard from someone else who liked his kitchen lamps.  Neither of those people were invited over.  It’s a cute story with only a modicum of creepiness–certainly it would come as no surprise to someone reading a blog about social media legal issues that there may be some tension when a private gathering has some social media celebrities or heavy users: the private event will end up being something less than private.

But compare that story of a dinner party gone public to the much more sobering tale over two college students having their sexual orientation outed on Facebook.  (Hat tip here to another friend, Will Spence.)  The students did all they could to set their Facebook profiles to be private since the students were living somewhat openly while in college but had not yet told their family.  But when another user created a Facebook group for the Queer Choir they had joined on campus, that event of being added to a public group was broadcasted to all their friends, including family members.  This then forced the issue and the students were asked point blank about their sexuality by their parents.  That’s not as cute as having a dinner party seen by potentially millions of people.

Mark Zuckerberg is well known for saying that you should have one account on Facebook because you are who you are–that the days of having a different image at work from the one you have outside of work are coming to an end.  But they still maintain extensive privacy controls for different activities.  Ironically, having more privacy controls can actually lead people to reveal more information about themselves.  It’s called the illusion of control and there’s research to back it up.  This Texas case wasn’t directly about that illusion–although perhaps because both of the outed individuals had locked down their profile they thought it was safer to connect with more people they were open with, and it was one of those people that added them to the group.

It has always been difficult to control private aspects of your life if some people know and others do not.  That was true before social media and is even harder today when one slip and everyone can see forever.  That said, have we completely screwed up the concept of anonymity?  There is a long and distinguished history of anonymous speech in the social and political arenas.  Today, anonymous speech is mostly nasty comments.  And anonymous parts of our lives are almost completely ignored.

France has been advocating for a right to be forgotten online.  This was considered an outlandish view and almost impossible to implement, but the debate continued.  This year the FTC issued its report Protecting Consumer Privacy in an Era of Rapid Change where they discuss multiple times the concept of a digital eraser button that would delete individual pieces of content (potentially even harder to implement than the widespread French right which would cover all data about a person).

But aren’t we going about this all wrong?  Anonymity isn’t about taking something back, it’s about not putting it out there in the first place.  If I don’t want pictures of the inside of my house put online, shouldn’t I be able to designate that space as private even if friends come over who Instagram daily?  If I don’t want pictures of myself or my children popping up online, shouldn’t there be a way to register our faces in Facebook’s much discussed facial recognition software so that the picture doesn’t go public?  Try uploading a video to YouTube with a song in the background and you’ll see it is immediately flagged for copyright issues–why isn’t this level of protection available for personal privacy?

Benjamin Franklin famously wrote “Three may keep a secret, if two of them are dead.”  Perhaps the rise of social media shall mean the death of all secrets.  But many cultures around the world also have some version of the phrase “Good fences make good neighbors.”  In addition to debating the merits or feasibility of removing information once it’s been published, isn’t it worth a discussion on ways to honor people’s wishes for privacy prior to publication?


Filed under Authentication, Cyberbullying, Facebook, First Amendment, Identity, Privacy, Social Platforms

Is Social Media Creating Cyberbullies?

It’s true. They do.

You can’t go a week these days without hearing about a case of cyberbullying.  If you sought the cases out you could find a new story every day.  Many of these stories have resulted in justice for the bullied, like the woman bullied on the school bus who ended up getting a vacation and the bullies were punished.  But too many of these stories still end in tragedy (I’m not going to link any here, you can search for yourself if you’re looking for some bad news).

Some say that social media has helped bring these cases to light or helped the victims.  Social media certainly can have some advantages here–bullied individuals can make meaningful connections so they realize they aren’t alone or they can show the public what bullies have been doing to them in private.  Certainly the notion of bullying has been around long before social media, so connecting more people can help address this problem even if it isn’t a total solution.

But I also have to wonder if social media is also contributing to the problem by creating more cyberbullies in the first place.

The Internet and social media are, at their cores, speech.  And the cornerstone of every western democracy (which still drives most social media activity) is free speech.  But that central right of free speech comes with costs.  One of those costs is offensive speech.  We do set limits after which speech can become something that we are no longer willing to legally protect (libel, slander, harassment, threats, coercion, etc.).  But even beneath these limits there is a huge amount of speech that is protected but unsavory–we call that offensive speech.  Offensive speech is protected and it should be–after all, the speech behind most political change will be considered offensive by some.  But at some point even a huge piling of offensive speech can become something more, something that we don’t need to protect.  That’s where the merely offensive turns into cyberbullying, even though the exact line is hard to draw.

But until the speech turns into something that society doesn’t want to allow, for the most part it is protected as free speech.  And one part of free speech is the right to be anonymous.  There’s a long history of the right to anonymously criticize a government or corporation being protected.  But that history is usually told through decisions made by the speaker.  Hundreds or even dozens of years ago people wrote critical pamphlets or essays or books and didn’t sign their name, or signed a fictitious name instead.  That anonymity was by intent.  The anonymity that social media allows is primarily one by design.

As the Internet grew from nascent connected communities like dial-up BBS sites and Usenet groups, real names were rarely used because of technical reasons.  Systems allowed only a certain number of characters for your ID, if they allowed letters at all (one of the early, large networks, CompuServe, only had 7 to 9 digits as your user ID and email address).  Putting in your real name wasn’t possible and it didn’t matter.  You adopted a nickname or handle and joined the community.

Gradually, more and more sites created their own techniques for logging in or establishing a permitted identity, but they rarely (if ever) required you to actually authenticate yourself.  Meaning you created an ID with a name and verified that was your account but there was no attempt to authenticate your name.  This authentication problem is something I’ve blogged about before but the importance here is jumping ahead several decades and seeing the social media world we have wrought.

In an effort to get people to join sites as quickly as possible, we have made signing up as easy as possible.  Easy means fast.  Fast means not authenticated.  Sites don’t care if you are who you say you are–that you use their site and accept their terms are good enough.  We have created a world where the vast majority of content is anonymous.  Some of it may be truly anonymous, as in not even a username is attached as an author.  Other content may have a user identity connected to it but we have no idea who the person may be.

There are some well known psychological impacts to having this amount of anonymous activity.  Generally it’s known as disinhibition and it has some scary sounding factors like dissociative anonymity (knowing their activity cannot be traced back to them, users will behave differently online), solipsistic introjection (communications from other people, seen just as text on a screen, can be interpreted as just a voice within a user’s head–a voice which they can then respond to without regard for social norms), and asynchronicity (users may post more heated content because they know they will post it and then never have to revisit the content or site again).

Social media certainly has the ability to connect people in meaningful ways. But as it becomes a more widely used method for communicating it also comes with some dangers.  It didn’t create the original problem, but social media might be making it worse.  Lawmakers are already struggling with how to properly address cyberbullying and otherwise offensive posts.  There’s a great article from the BBC about a current wave of prosecutions over social media content, but even better is the video embedded in the article that talks about different categories of offensive behavior and what is appropriate to prosecute.

But have we made the problem of cyberbullying worse by continuing to propagate social media sites that have anonymous or unauthenticated accounts?  Gawker came under fire for recently unmasking the true identity of a controversial user at Reddit.  The immediate response from the Reddit community was to flame Gawker for infringing on free speech, particularly the right to speak anonymously, and then to ban all Gawker links from Reddit.  Apparently they missed the hypocrisy in their response, but deep down is something bigger.

When this user was unmasked he practically begged the author not to reveal his name.  He knew it would have real world repercussions based on the content he had posted and the people he had riled up over the years.  Perhaps without social media he would have found other, similar outlets for his kind of activity–but did social media make it worse?

Are we creating a new generation who are even more disconnected from other people and simply see words on a screen rather than feeling people behind them?  Social media is about conversations and should be about bringing people together.  Could it be the technology that allows me to connect to someone I would have never met in real life is the same thing that disconnects me from people who work next to me?

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Filed under Authentication, Cyberbullying, First Amendment, Identity, Informal Tone, Privacy, Social Platforms

Is The Oatmeal A Cyberbully Or A Victim?

This is why I do not support fist-transmission protocols.

I originally was going to write a blog post today about the law being debated in the UK that would force social media platforms to disclose user information if served with a complaint.  Failure to do so would make the platform liable for the statement itself, a clever way of shifting burdens to hopefully make platforms more responsive to these claims (unlike the less than clever burden shifting Malaysia did recently that won’t be as helpful).  The law is being discussed in the wake of a particularly nasty case of cyberbullying.  A woman posted an innocent message in support for a reality TV contestant and she became the target for some trolls.  First they posted nasty responses, then they escalated to posts on her wall, then they created fake profiles under her name to continue to post offensive messages and content.  That kind of one-sided attack is an easy case where we can point to one party (or group0 and safely say they were cyberbullies.

But then several people sent me links about the ongoing case of The Oatmeal and it made me stop and think: can both sides of a dispute be a cyberbully?  And, in this case, is The Oatmeal a cyberbully?

We first discussed this last week when The Oatmeal publicly responded to the legal threat they had received.  That story has continued to develop.  First, Scribd has a copy of the official legal response from The Oatmeal’s attorneys.  It’s a letter worth reading if you’re interested in the official legal responses to the claims made by the site threatening The Oatmeal.

But I also find the letter interesting in this regard: it was sent the same day as The Oatmeal’s blog post responding to the FunnyJunk threatening letter.  I don’t know if the timing was a coincidence, but we do know that Matthew Inman, the artist behind The Oatmeal, must have already had conversations with his attorneys about the threatening letter.  And Matthew probably knew that the law firm was going to send an official response.

So then why did he do the blog post?  I’m sure at some level he felt threatened by the letter–after all, getting a letter from an attorney demanding money or you will be sued never feels good even if you feel you’re completely in the right.  There’s time and money involved in defending yourself even from the most frivolous of lawsuits and while sometimes you can recover money at the end that’s not as common as it should be and takes even more time and money.  So I’m guessing the blog post was a way for him to respond, to feel empowered, to lash back at someone who threatened him.  But did he go too far?

There are many debates over what constitutes cyberbullying.  I don’t think any single definition captures it all.  But I do think that central to the concept of cyberbullying is the bully having an inappropriate response to something the victim has done.  That typically involves some kind of escalation.  In the UK, the victim posted an innocent comment of support that the bullies then escalated by accusing her of criminal acts and creating fake accounts in her name to continue those attacks.  They may have thought it was just a joke (doubtful, but let’s go with their best case scenario) but even as a joke that is an inappropriate escalation.  Just like in a schoolyard if two people disagree and one throws a fist–that’s an inappropriate escalation.

To be fair, most people don’t think they’re escalating the conflict.  At some level they think it’s an appropriate response–it’s outside parties that step in to say they went too far.  That’s usually an easy thing when the escalation involves words turning into physical harm, but it’s harder to measure when the conduct stays in the verbal realm.

Which brings us back to The Oatmeal.  Matthew knew his attorneys were dealing with the threatening letter.  Who knows how many letters he gets like this each year?  Maybe this was the only one, maybe he gets dozens.  Regardless, he had his lawyers dealing with the letter from another lawyer.  Then he decided to take it to his audience.  Granted, he did so in a humorous way and that was fun, but I think most people reading the response thought that it was how The Oatmeal chose to respond to this threat: showing it to everyone and then raising money for some charities as a way of telling the original threatening party to go away.

But that wasn’t the response.  It turns out there was an official response from lawyers (smart).  The blog post and charity campaign was something more, an escalation.  Was it an appropriate escalation?  That’s hard to say.  But in The Oatmeal’s response, Matthew specifically called out the attorney (more than including the name on the letter, he also included links and tried to call out some potentially embarrassing information).  He also wrote the following:

I don’t want to get tied up in courtroom nonsense. I don’t want to pay more money to my lawyer.

Maybe that statement was meant to be vague, after all nobody wants to pay more money to their lawyer.  But it does leave out any indication that he’s also dealing with this officially.  In fact, he lays out his plan for dealing with the threat and nowhere in the plan does he mention the official response.

Of course, he doesn’t have to tell the public anything about his legal plan.  But it does make his response an escalation.

And make no mistake, the situation has escalated.  The Oatmeal raised the initial goal of $20,000 in 64 minutes and has currently raised over $180,000.  And there has been a flurry of press attention.  Almost all of it dealing with the standard story of Internet-author-wrongly-accused-of-crime-takes-conflict-to-the-Internet.  What hasn’t gained as much attention are the attorney’s claims that his website has been hacked and that he has been mocked and ridiculed on Twitter.

If your first response was, “So what?  He deserves it for his threatening letter.” then you’re missing the point.  Those are escalations of the conflict against him–the attorney in the case.  These are above and beyond anything that may be happening to the site that the attorney represents.  And I’m also not mentioning the attacks that appear to be targeted against the website client (Matthew’s illustration and some tweets) but the attorney believes are aimed at him.  The end result is that now the attorney himself has filed a lawsuit against The Oatmeal alleging that Matthew incited the cyberbullying he has now fallen victim to.  The attorney also includes the site raising funds for the charities and the charities themselves, something that may not be a smart move from a public relations perspective but one he may feel is required to get them involved since he believes the charity campaign is not following legal requirements.

This lawsuit is yet another escalation, but is it more of an escalation than The Oatmeal’s blog response?  Is it more or less appropriate an escalation?

Fans of The Oatmeal, or the little guy in general, may find it easy to side with The Oatmeal.  And to dismiss the actions that others may have taken without Matthew’s knowledge after his blog response.   But your view of the situation may change knowing that all of these escalations didn’t need to happen.  Matthew’s lawyers were dealing with the complaint.  The letter was not posted publicly.  I’m not suggesting he just sit back and deal with the letter himself, but he was having his attorneys deliver the official response.  The rest was escalation.

Does that make The Oatmeal a cyberbully, or was that a proper response to a cyberbully?


Filed under CopyFUD, Copyright, Cyberbullying, Laws, Social Content, Social Media Lawyers, Social Platforms, UK