Doing what’s right

It’s critically important that communication professionals apply a sound understanding of the legal landscape and ethical standards within digital and mediated communication. This handbook is designed to guide employees and communicators on how to communicate ethically and legally in a digital world. Through research of ethical constructs and the Unites States legal precedents that have impacted communications, this handbook provides an overview of key concepts, best legal practices, and a detailed case study on influencer marketing.

Keywords/Tags: communications law, digital communications, ethics, corporate handbook

Table of Contents

Introduction
Laws and Regulations: How the First Amendment has been applied to digital and mediated communication
First Amendment Applications and Landmark Court Cases
How Companies Have Adapted to Communications Law
Best Legal Practices
Ethical Guidelines: A code of ethics to guide digital communication and message creation in the digital world
Ethical Guidelines to Steer Our Company’s Communications
Best Ethical Practices for Employees in the Digital Age
Case Study: Applying this handbook to the use of social media influencers by the Fyre Festival
Applying the First Amendment to Social Media
Existing Communication Laws and Regulations
Select Landmark Legal Cases Impacting Social Media Influencers
Applying “Best Legal Practices” to the Case Study
Existing Ethical Codes to Apply to Social Media Influencers
Ethical Assessment of Fyre Festival Use of Social Media Influencers
How Analysis Can Be Applied to Future Digital Communication

Introduction

In the United States, numerous laws, statutes, court decisions, and regulations govern communications in the digital age (Thomson Reuters, 2018). As responsible and ethical communicators, it’s important to consider the many ways communication should abide by legal and ethical principles to operate effectively within a democratic society (Wilkins et al., 2021). Since the ratification of the Constitution of the United States, great advancements in technology and the subsequent invention of modern digital media have created complexity in understanding and applying legal standards to today’s contemporary communications (Moore et al., 2021). The First Amendment of the United States Constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (Overview of Freedom of the Press, n.d., first paragraph).

First Amendment Applications and Landmark Court Cases

There are numerous examples of how the First Amendment has been applied to digital and mediated communication. While First Amendment protections have applied to an array of communication and media, the invention of the internet as a communications medium brought about attempts at further regulation and control of digital media and mediated communication (Baran, 2023). Notably, the Telecommunications Act of 1996 included a statute, the Communications Decency Act (CDA), which attempted to censor content and transmitted messages on the Internet (Moore et al., 2021). Provisions within the law applied to content that was “indecent” – no definition given - and “patently offensive,” which concerned a narrow definition of content that was sexual in nature (Moore, et al., 2021). The Supreme Court, in Reno v. ACLU, struck down the CDA as unconstitutional in the provisions regarding “indecent transmission” and “patently offensive display” (Moore, et al., 2021). The case has provided a legal precedent in protecting free speech on the internet from of government censorship (Moore, et al., 2021).

The legal doctrine of prior restraint is one that is very well established in how it applies to free speech protection enshrined in the First Amendment. Prior restraint is “any attempt by the government—a law passed by a legislature, an order signed by a judge, any effort by an executive or regulatory agency—to prevent someone from publishing, broadcasting, speaking, or interfering with other manners of expression” (Moore et al., 2021). Prior restraint is censorship whereby the government requires prior review of materials to prevent publication (Baracskay, 2023). The Supreme Court first established prior restraint in the case, Near v. Minnesota, and has been well-accepted legal precedent (Moore et al., 2021). The Minnesota state legislature passed a law in 1925 to prevent the publication of “obscene, lewd and lascivious … or malicious, scandalous, and defamatory newspaper, magazine, or other periodical” as a public nuisance” known as the Minnesota gag law (Moore et al., 2021, p. 94).

People found guilty of these crimes would be prevented from publishing (Moore et al, 2021). Publishers of the Saturday Press in Minneapolis were later found guilty of publishing content that violated the gag law based on criticism, often antisemitic, of public officials. The publishers were forced to end publication, with their case being heard on appeal by the Minnesota Supreme Court, which upheld the law (Moore et al., 2021). The case was appealed to the Supreme Court, which decided to strike down the Minnesota law as unconstitutional. Chief Justice Hughes said in his majority opinion, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published” (Moore et al., 2021, pg. 95).

In another notable court case concerning First Amendment protections for free speech, the Supreme Court ruled in Citizens United vs. Federal Election Commission that prohibition on corporate independent expenditures and electioneering communications is a ban on speech and "political speech must prevail against laws that would suppress it, whether by design or inadvertence" (Citizens United v. FEC, n.d., paragraph 5). The ruling essentially disallows limits on spending by corporations on electioneering communication, whereas previously they were limited to yearly capped amounts (Citizens United v. FEC, n.d.). 

How Companies Have Adapted to Communications Law

As a result of changes in communication law brought on by landmark court cases, companies have need to adapt their practices and ways of working to adhere to changing legal and ethical expectations. While the First Amendment provides protection against unlawful restrictions on free speech, companies still need to acknowledge their legal responsibilities, particularly regarding unprotected speech (University of Wisconsin, n.d.). There are exceptions to what the First Amendment allows, this includes “situations where immediate violence is provoked, someone is unduly intimidated or falsehoods are spread about someone else” (University of Wisconsin, n.d.). These categories of unprotected speech include: Incitement to imminent lawless action, Harassment, True threats, Defamation, Obscenity, and child pornography, Fighting words, and Non-expressive conduct (University of Wisconsin, n.d.).

In the 1970s, commercial speech protections under the First Amendment began to evolve dramatically (Thomas Reuters, 2022). Additionally, mediated digital content, specifically via social media channels, have undergone dramatic changes thanks to the 1996 Communications Decency Act. Under Section 230, the law says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” (Ortutay, 2023). This phrase prevents social media giants like Facebook and Twitter from being held legally responsible for something someone has posted on their platforms (Ortutay, 2023). Section 230 also allows for these platforms to moderate their services by removing obscene content or service violations as long as the platforms act in “good faith” (Ortutay, 2023).

Best Legal Practices

With the various ways that communication laws govern commercial speech, companies must acknowledge their responsibilities and proceed using the best legal practices to avoid lawsuits and legal problems. Here is a list of best legal practices that company employees should follow in regard to digital communications:  

1.     Do not discriminate, harass, or include hate speech in your communications (Hanks, 2023).

2.     Do not spread falsehoods about people or other entities as to defame, slander, or libel (University of Wisconsin, n.d.).

3.     Do not threaten bodily harm, incite violence, or use ‘fighting words’ (University of Wisconsin, n.d.).

4.     Follow federal and state privacy laws (Hanks, 2023).

5.     If a publicly traded company, follow regulations included in the Securities Exchange Act of 1934 and Sarbanes-Oxley Act of 2002 (Hanks, 2023).

6.     Do not violate copyright laws of intellectual property owned by someone else (Baran, 2023).

7.     Do not engage in deceptive advertising (Social Media Influencers Legal faqs, 2023).

Ethical Guidelines: A Code of Ethics to Guide Digital Communication and Message Creation in the Digital World

Ethics help guide our behaviors and actions to help us make decisions that align with our values and morals (Wilkins et al., 2021). While the legal system can help us determine what we can and cannot do under the law, ethical guidelines help us devise what we “ought to do as moral agents” (Baran, 2023).

Social responsibility theory says that media have essential roles in society, serving important obligations to inform the public through honest, accurate, and professional communications (Baran, 2023). While they remain free from government censorship and control, the media must serve the public (Baran, 2023, p. 236). This means that media professionals have a responsibility through their work to be forces for good, actively striving to minimize harm to society (Baran, 2023).

Ethical Guidelines to Steer our Company’s Communications

The self-regulating nature of a free and open press means that in the absence of excessive government interference and censorship, the media must assert their own ethical standards to guide their work (Baran, 2023). Ethical decision-making can be complex, and therefore many media associations have developed their own codes of ethics within their respective industries to help them confront ethical dilemmas (Wilkins et al., 2021). When examining media codes of ethics, some common themes emerge: the importance of truth, accountability, reduction of harm, and respect for diverse perspectives (Wilkins et al., 2021). These common themes provide a basis for our company’s ethical guidelines for communication: The importance of truth, accountability, reduction of harm, and respect for diversity.

Importance of truth: Being truthful is essential in our communication, and it governs how we interact with customers, staff, regulators, and other stakeholders. In order to build trust within society, we must be honest in our communication and place a high value on openness and transparency. Democratic societies place a high value on truth and to be a responsible actor within our society (Wilkins et al., 2021), truth must be central to our purpose as communicators. Specifically, we should not manipulate or mislead our audiences into buying our products based on false pretenses or flimsy promises. For example, we should not exaggerate claims based on our products or overpromise results.

Accountability: We are accountable to society for our contribution to public discourse and therefore need to acknowledge the impact of our communication. The American Marketing Association outlines ways that marketers should be responsible for their communications, specifically in the economic sphere of influence, as well as the need to accept the consequences of our communications (AMA Statement of Ethics, 2021). With our ability to influence customers and our increasing access to powerful digital tools, we need to be accountable for the potentially outsized impact we have on consumers. For example, by using Meta’s powerful digital advertising tools on social media, we need to be responsible for the impact those messages might have on consumers.

Reduction of harm: Under social responsibility theory, media should consider how information published may lead to “crime, violence, or civil disorder, or that might offend minority groups” (Baran, 2023, p. 236). Ethical consideration should be given to communications that may cause harm to society and individuals. Our communication should be assessed on its capacity to cause harm under this principle. For example, we should consider how our marketing and communications may potentially cause harm or stoke civil disorder.

Respect for diversity: In a pluralistic society, communicators speak to diverse audiences with diverse points of view. Our company should respect varying points of view and avoid minimizing or stereotyping different groups in society with our communications (Baran, 2023). Company communications should reflect the diversity of society, our staff, and our customers. For example, our marketing photography should feature people who are representative of the racial, gender, and cultural diversity of our audiences.

Best Ethical Practices for Employees in the Digital Age

Importance of truth

·       Be honest with our customers and take care not to manipulate or mislead our audiences.

·       Be transparent about our commitments and limitations regarding our product.

·       Avoid greenwashing and exaggerations about our sustainability practices and corporate responsibility.

Accountability

·       Do not abuse the trust of the public and its institutions through our communications.

·       Protect your audience’s privacy and prevent the sharing of sensitive information of our customers, particularly online.

·       Respond to criticism and when we make a mistake, do our best to own it and apologize.

Reduction of harm

·       Respect the privacy of our customers, many of whom are under 18, especially in our online communications and social media targeting.

·       Use our communication platforms to help our customers and students, providing a clear pathway for resolving customer problems.

·       Pay special attention to persuasive communications that might affect underage students and customers disproportionately.

Respect for diversity

·       Don’t use stereotypes in our communication to describe any group (gender, race, sexual orientation, religion, etc).

·       Consider how the omission of certain groups from our marketing materials can reinforce bias and discrimination.

·       Be inclusive of other cultures and their points of view within our marketing materials, being sure to avoid cultural appropriation.

Case Study: Applying This Handbook to the Use of Social Media Influencers by Brands

Today’s use of social media influencers by brands to promote their products presents many legal and ethical implications. People with sizable social media followings have extraordinary power on the internet to influence their followers, promote trends, and exert their authority and credibility through the power of their persuasion (Geyser, 2024). When influential voices online have amassed millions of followers (or critical mass within an influential niche of followers), everything they wear, purchase, and promote has the potential of selling quickly - representing a massive opportunity for brands to capitalize on the amplification of an influencer’s massive reach (What is influencer marketing?, 2023). When brands and social media influencers enter a partnership together, the brand benefits from positive exposure, while the influencer receives compensation, either through direct payment, free access to goods, and/or other social benefits (Geyser, 2024). Partnerships between brands and influential online personalities have become a multi-billion dollar business, representing more than $21.1 billion dollars in 2023 (What is influencer marketing?, 2023).

Applying the First Amendment to Social Media

There are many considerations regarding First Amendment protection of speech on social media as it relates to social media influencers and the brands they partner with. Social media platforms are operated by private businesses and those businesses can control what is permitted on their platforms according to their user agreements (Fisher, 2024). Because social media users agree to platform rules when they create social media accounts, the platforms themselves are allowed to moderate the content that appears, block users, or restrict content that violates their terms of service (Fisher, 2024). These actions do not constitute governmental censorship because content moderation is conducted by private companies, not government entities (Fisher, 2024).

Existing Communication Laws and Regulations

As described in the Supreme Court case, Manhattan Community Access Corp. v. Halleck (2019), “the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech” (What First Amendment protections exist for speech on social media?, n.d.). The Supreme Court will hear cases later in 2024 that address content moderation, the results of which may have a profound impact on free speech rights on social media (Greenky, 2023).

The Federal Trade Commission regulates the material connection between social media influencers and the brands they partner with to help prevent deceptive advertising practices (Disclosures 101 for Social Media Influencers, 2019). Regulations require that influencers disclose when they have “any financial, employment, personal, or family relationship with a brand” (Disclosures 101 for Social Media Influencers, 2019). This means that influencers must disclose the relationships they have with brands when posting about a brand or its products (Disclosures 101 for Social Media Influencers, 2019). Their reviews and product commentary must be honest, and the disclosure of the material connection must be easily seen within the post and in simple, clear language (Disclosures 101 for Social Media Influencers, 2019). Additionally, the content created and shared by the influencer must accurately reflect the experiences and opinions of the influencer (Social Media Influencers Legal faqs, 2023).

A prominent example of social media influencing ‘gone wrong’ is the example of the social media promotion of the Fyre Festival in 2017, organized by promotor Billy McFarland (Wilkins et al., 2021). Notable celebrities and online influencers were paid to promote the music festival using the hashtag #FyreFestival months before the event would take place, however, they never indicated they were compensated for the promotion (Wilkins, et al., 2021). More than 400 different Instagram accounts promoted the event, which was billed as a luxury island experience in the Bahamas featuring top musical performers, five-star accommodations, food, and VIP experiences (Chapple, 2017). However, when guests arrived at Fyre Festival at the end of April 2017, they quickly learned that the promises of a luxury experience were false (Higgins, 2019). They were given very basic tents for accommodation, limited food options, and canceled performances, which caused a chaotic scene of panicked attendees trying to desperately leave the island (Higgins, 2019).

In this situation, the influencers and the organizers of the Fyre Festival failed to disclose their material connection in the social media promotion campaign where influencers received up to $250,000 in exchange for their posts, a violation of FTC advertising rules (Chapple, 2017). The posts by the influencers also violated Instagram’s terms of service, which bar “anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose” (Terms of Use, 2024).

Select Landmark Legal Cases Impacting Social Media Influencers

When it comes to commercial speech, there are limitations to what is allowed under the law, which can be assessed using existing court doctrine. In the landmark Supreme Court case, Valentine v. Chrestensen (1942),  F.J. Chrestensen distributed flyers promoting his tours, which violated a New York State sanitary code that prohibited commercial and business advertising on the streets (Moore et al., 2021). The police commissioner of New York, Lewis J. Valentine, informed Chrestensen that only handbills with information or public protest were allowed (Moore et al., 2021). Chrestensen submitted for review a new flier, with his advertisement on one side, omitting the price, and text on the other side that criticized the City Dock Department for banning his original flier. Again, he was told that his flier violated the city ordinance against advertising, despite the additional protest information on the backside (Moore et al., 2021).  Christenensen distributed the flier anyway and was arrested by the police. Ultimately, an appellate court decided that the law banning advertising fliers was constitutional, but the case went to the Supreme Court on further appeal. The Supreme Court ruled unanimously that “commercial speech is not protected by the First Amendment” (Parker, 2024, image caption). In its decision, the Court wrote also wrote: “that just because expression was commercial did not necessarily mean that it was unprotected” (Baran, 2023). The case made it clear that commercial speech is not afforded as much free speech protection as noncommercial speech (Schultz, 2024).

Additional landmark cases further expanded First Amendment protections for commercial speech. Notably, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court expanded free speech protections for commercial speech. The decision emphasized that the First Amendment “not only includes the right of the speaker to speak, but also the right of the listener to receive information” (Schultz, 2024).

Applying “Best Legal Practices” to the Case Study

In the case of social media promotion of the Fyre Festival, applying best legal practices would have mitigated much of the harm created and subsequent legal troubles in regard to communications. A limitation of commercial speech is that it must not be fraudulent (Schultz, 2024). The largest offense of the Fyre Festival communications was the use of deceptive advertising, which violated Federal Trade Commission rules regarding social media influencer disclosure laws (Disclosures 101 for Social Media Influencers, 2019). By not following the regulations that govern disclosures of material connection between companies and their advertising partners online, the Fyre Festival organizers and influencer engaged in deceptive advertising (Higgins, 2019).

Existing Ethical Codes to Apply to Social Media Influencers

The American Marketing Association includes in their AMA Statement of Ethics, ways that marketers should take responsibility for their communications and apply ethical guidelines to their work (AMA Statement of Ethics, 2021). The AMA’s ethical standards first dictate that advertisers should follow “all applicable laws and regulations” (AMA Statement of Ethics, 2021). By not following the Federal Trade Commission regulations, the organizers and the influencers violated a major tenet of the AMA Code of Ethics. Additionally, the organizers failed to strive for transparency and fairness when they failed to disclose their material connection to the influencers, a violation of the AMA Code of Ethics (AMA Statement of Ethics, 2021).

Ethical Assessment of Fyre Festival Use of Social Media Influencers

When applying my list of “best ethical practices”, there were many diversions assessed within my case study on the promotion of Fyre Festival. Firstly, the importance of telling the truth and being honest, which is critical to ethical communication. The organizers failed to be truthful in their promotion of the Fyre Festival and misled their customers with false promises through the conduits they had as social media influencers (Higgins, 2019). Secondly, the organizers and the influencers failed to be accountable for their communications, abusing the trust of their audiences, who purchased tickets and flew to the Bahamas based on false promises and misleading advertisements (Higgins, 2019). Thirdly, the organizers did not adhere to principles that would have reduced harm to their audiences. In fact, by enticing their audiences to a remote island in the Bahamas with not enough water, food, or shelter, they put their audiences and customers at risk (Higgins, 2019).

How Analysis Can Be Applied to Future Digital Communication

In future digital communications, there are many lessons that can be learned from the social media promotion of the Fyre Festival. The organizers of the Fyre Festival engaged in unethical and illegal communications activity to manipulate and mislead the public, which violate the principles of the social responsibility theory within communications (Baran, 2023). Many of the communication failures surrounding the event were due to lapses in legal and ethical judgment (Higgins, 2019). Failure to comply with their legal responsibilities, as well as failure to apply ethical standards resulted in a complete loss of credibility and millions of dollars in lawsuits (Voytko, 2020).

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