Facebook: Ethics and Law
In July 2020, Facebook was under attack, again.
This time, several national civil rights groups, enraged by former President Donald Trump's persistent claims of a "stolen" election, had joined forces behind the #StopHateForProfit hashtag. The group was pressuring thousands of advertisers to boycott the social media platform. And several major brands, including Adidas, Ben & Jerry’s, Coca-Cola, Ford, HP, Honda, Levi Strauss, PepsiCo, Pfizer, Unilever and Verizon, quickly signed on.
Facebook for years had weathered criticism about an evolving set of rules governing social media postings. While the Big Tech firm may have started out with a stated mission to “give people the power to build community and bring the world closer together,” its business mission has always been to target users of its social media platform with directed online advertising. Say what you will about civility in online posts. This civil rights boycott was not targeting Facebook practices. It was targeting Facebook profits.
And with its revenue stream at risk, Facebook was ready to talk. Founder and CEO Mark Zuckerberg, along with the company’s top operations, public affairs and PR executives, agreed to meet with leaders of the #StopHateForProfit campaign. During the meeting, Facebook promised to release the final section of an internal civil rights audit it had conducted. But the $26 billion company would not commit to hiring a civil-rights champion as a C-suite executive, or allowing third-party audits of identity-based hate and misinformation posted to the site. Changes to its “community standards” policies were off the table.
As far as the activists were concerned, the meeting did not go well.
“Facebook approached our meeting today like it was nothing more than a PR exercise,” Free Press leader Jessica González said. “This isn’t the first time our organizations have asked Facebook to clean up its act. We’ve seen over and over again how it will do anything to duck accountability by firing up its powerful PR machine and trying to spin the news.”
PR exercise. PR machine. Spin the news. Facebook business practices have contributed to rising concerns about online privacy, free speech, and social justice funded through indiscriminate online advertising spending. Meanwhile, Facebook’s public response to highly publicized issues ranging from Cambridge Analytica to the 2020 presidential election have exposed perceived shortcomings – and compelling opportunities -- facing the PR profession.
Rejecting the spin-doctor designation, PR practitioners have adopted a set of values and an ethical code to guide communicators. Meanwhile, established legal precedents have forged a framework for content creation and communications. Let’s start with six core values for PR practitioners advanced by the Public Relations Society of America:
Responsibly advocate for clients by adding their voices to the marketplace of ideas, acts and viewpoints. Aid informed public debate.
Adhere to the highest standards of accuracy and truth. Advance the interests of those we represent in communicating with the public.
Acquire and responsibly use specialized knowledge and experience. Build mutual understanding, credibility, and relationships.
Provide objective counsel to those we represent. Maintain accountability for our actions.
Faithfully serve those we represent. Honor obligations to serve the public interest.
Deal fairly with clients, employers, competitors, peers, vendors, the media, and the general public. Respect all opinions and support the right of free expression.
Based loosely on these principles, the PRSA Code of Ethics in turn offers up six pillars for PR practitioners to follow in representing their clients. Here are the touchstones of the ethical code and how they are put into practice:
Protect and advance the free flow of accurate and truthful information to serve the public interest and contribute to informed decision making.
Promote healthy and fair competition to preserve ethical climate, foster robust business environment.
Enable open communication to foster informed decision-making in a democratic society.
Protect confidential and private information to maintain client trust.
Conflicts of Interest
Avoid real, potential or perceived conflicts of interest to build trust in and credibility of the PR profession.
Enhance the profession
Work constantly to strengthen trust in the profession.
While this code of conduct provides some guidance for PR, to an extent the pillars are largely aspirational. The Competition, Conflicts of Interest and Enhance the Profession pillars do just that, seeking to elevate the PR profession along with PR professionals. In practice, the PRSA code acknowledges conflicting pressures on communicators. A profession fully advancing the free flow of information, for example, should never find itself battling a reputation for spin.
The law of the land
Fortunately, another set of rules of the road exist to help navigate the very real and sometimes costly risks involved in managing communications for a company, cause or candidate. Unlike ethical principles or a code of conduct, legal and regulatory precedents create an enforceable framework for managing communications. Here are several legal and regulatory guideposts that will surface from time to time in professional communications:
Respect original authorship of content. Ideas and discoveries are not protected, but the ways they are expressed may be. Fair Use allows you to quote and cite published work to a limited extent.
A trademark consists of a word, phrase, symbol, or design that identifies a brand or product. Protect brand names, slogans and logos by using TM designation, and respect trademarks and service marks of others.
Defamation is a false statement presented as a fact that injures a person in some tangible way. Libel is a defamatory statement in writing. Slander is a defamatory statement spoken orally. Damages in lawsuits hinge on intent, and in the case of public figures, willfully ignoring the truth.
Courts have upheld a right of people “to be left alone.” Statutes protect personal information, including some government records like health information. Contract law would protect confidential personal and business information.
Details about public company financial results or strategic plans must be disclosed fully and fairly to investors. PR plays a pivotal role in managing the release of earnings, merger announcements and executive changes. Trading on inside information is a crime.
False or misleading advertising covers promotion of both your products and services, and those of competitors. Be prepared to back up statements like “clinically proven,” “organic” or “better.” Deceptive pricing and sales practices can pose PR challenges and trigger regulatory inquiries.
Finally, there is one more law of the land that is not on the list above. In the U.S. Constitution, the foundational principles underlying communications are codified in the First Amendment:
“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."
Cue the July 4th fireworks. While you read this, stream Bruce Springsteen’s Born in the USA. Or James Brown’s Living in America. Brooks and Dunn’s Only in America. Ray Charles’ rendition of America. Free speech and its corollary, a free and unfettered press, fanned the flames of an American revolution. In a democratic society, free speech creates a vital right to frame public discourse and inform voters. In a capitalist economy, free speech creates a vibrant tool for advancing commercial interests and reaching customers. There ain’t no doubt I love this land.
Which brings us back to Facebook. The social media has been compared to the Wild West, with Big Tech firms like Facebook, Google, Amazon and Apple navigating society through the turbulence of digital disruption with a compass that constantly steers the firms back toward their own commercial interests.
Facebook, recently rebranded as Meta, is under fire for the black-box algorithms that target their user base with advertising. The hot button in this debate has been political advertising. But when New York University researchers began researching how voters were being targeted, Facebook in early August 2021 blocked their access to its platform.
Although Facebook said the NYU researchers were violating privacy rights of Facebook users, the Ad Observatory study was being conducted by tracking Facebook pages of users who had explicitly agreed to allow their Facebook pages to be scraped by the researchers. Whose privacy was Facebook protecting?
And during the Trump administration, when forced to weigh the free speech rights of a sitting US president against concerns about inciting violence, Facebook did what many companies would probably do. It punted.
Years earlier, in the wake of its Cambridge Analytica scandal, Facebook had floated the concept of an independent Oversight Board empowered through its founding charter to adjudicate conflicts between the "freedom of expression" and "authenticity, safety, privacy, and dignity." Up to 40 trustees, serving staggered three-year terms, have since been empowered to define Facebook community standards and direct Facebook to pull down content violating those standards.
As of this writing, the Oversight Board has issued twelve decisions, including Case decision 2021-001-FB-FBR upholding Facebook's decision to ban former President Donald Trump from Facebook and Instagram. While protesters stormed the U.S. Capital building on January 6th, 2021, seeking to disrupt Congressional deliberations that would confirm the election of President Joe Biden, Trump posted a video on Facebook and Instagram, followed by a written statement on Facebook.
"I know your pain. I know you’re hurt. We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side, but you have to go home now. We have to have peace. We have to have law and order," Trump said in the video, urging supporters to abandon the protests and "go home," a message repeated in the later statement.
In its ruling issued five months after the protests, the Oversight Board determined that language supporting the protesters -- “'We love you. You’re very special' in the first post and 'great patriots' and 'remember this day forever' in the second post" -- violated Facebook standards by praising or supporting people engaged in violence.
"The Board found that, in maintaining an unfounded narrative of electoral fraud and persistent calls to action, Mr. Trump created an environment where a serious risk of violence was possible," the ruling trustees said. But the case was not over. The board remanded the case back to Facebook to reconsider an indefinite ban.
Facebook subsequently amended its decision, issuing a press release in early June banning Trump from its social media platforms for two years. The company also implemented a system of "counting strikes," without defining how many strikes constitute an out, and established a "newsworthiness" exception. Ultimately, Facebook acknowledged that decisions about free speech online will need to be determined by elected officials, and not an ad hoc group of experts.
"Facebook shouldn’t be making so many decisions about content by ourselves," the company said. "The Oversight Board is not a replacement for regulation, and we continue to call for thoughtful regulation in this space."
Publisher or platform?
But how exactly would Facebook be regulated? Is Facebook simply a platform that enables online communication by its users? Or is Facebook a publisher responsible for that content? While the question may seem esoteric and a bit wonky, this is a distinction with a difference.
As a platform, Facebook and other online forums like Twitter and Reddit are simply digital conduits of information. They cannot be sued for slander or libel. They also cannot control what you say or ban you for saying it. As a platform, Facebook would be like Verizon or AT&T.
As a publisher, Facebook would be responsible for all of the content posted on its website, similar to a news organization. The distinction would open the company up to significant legal liability, along with a crushing obligation to make editorial decisions about the content posted in every corner of its website. As a publisher, Facebook would be like the New York Times or CBS News.
During a recent Congressional hearing on Capitol Hill, Founder and CEO Mark Zuckerberg hedged his bets, labeling Facebook a “tech company” and not a media company. Facebook is a simply a digital platform, he said. On the other hand, when it comes to Net Neutrality and federal regulation, Facebook claims First Amendment freedom of speech rights, like a publisher.
Facebook likely will not be able to play both sides of this coin. In fact, Facebook to some extent bailed on the whole issue, rebranding itself as Meta. Ultimately, though, the designation of platform or publisher will have tactical and strategic implications for the Facebook forum, and for Facebook PR.
Based on what you have just read,
and your personal experience with social media,
a platform or a publisher? Why?
And what about social media sites that you use.
What do they owe you as a user?
Respond in the comments section below
and be prepared to discuss this in class.