Social Media Ruling Leads to Spike in Mainstream Media Misinformation

A court verdict about “addictive” social media features has led to a wave of broadcast misinformation on platforms.

A Los Angeles jury has awarded a plaintiff $3 million because they found that the algorithm used by platforms was “addictive”. 70% of the award is coming from Meta and 30% came from YouTube.

To be clear in all of this before I get to anything else, Meta is not a great company. For instance, Meta itself was lobbying to push for broken age verification systems, there was the facial recognition scandal, the many many many many security incidences, and of course, the whole Cambridge Analytica scandal to name a few things. To say they have a lot to answer for is a huge understatement.

The thing is, just because a company has a really really bad history of doing some pretty shady and naughty things (and that’s putting it VERY lightly), doesn’t necessarily mean that everything negative that happens to them is good news. I can tell you that a lot of people tend to forget that very easily – especially these days. This recent court ruling is a prime example of this.

Section 230

While the headlines on major mainstream media outlets may shy away from this, the reality is that this has a lot to do with Section 230. For a very long time now, there have been many efforts to try and either water down or otherwise sunset Section 230. I’ve documented a couple of these efforts such as here and here. I’ll try and be brief about this as this aspect is basically its own saga.

Section 230 is a very simple law to understand. The law, in its entirety, is this:

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.

In other words, if you post something to a website of a third party, the person who is responsible for that speech is you and not the third party. So, if someone posts something illegal on YouTube, that person is the one who is liable, not YouTube. It’s basic common sense.

The thing is, members of the old guard media hate the internet and want to see it go away. An effective way to do this is to eliminate Section 230 entirely, neutering all legal protections from website providers so they can turn back the hands of time and go back to the 80s or 70s where they are the only media game in town. So, they, along with their allies, push various lies about Section 230 such as how Section 230 is “outdated” and how Section 230 would only affect the large platforms. None of this is true. The reality is that this would affect all websites big and small and it’s a tired trope that causes people like me to point out why these are such egregious and blatant lies that risks causing considerable harm to everyone.

Either way, the efforts have largely focused on content for many years. If they can hive off certain forms of content and push the liability on the web services, then it would make it much more difficult to continue operating. A great example of this is SESTA/FOSTA back in 2019. In short, the legislation was sold as a way to combat human trafficking, but the reality was that it would eliminate Section 230 protections for anything related to sex work. The practical implication was that smaller dating services who had nothing to do with human trafficking were forced to shut down in response because there was no way they could withstand the liability that this entailed. It was a terrible outcome, but one that was by design as the impact of shutting down sections of the internet were successful in the end. If you want to read more on that, you can check out the Wikipedia entry which has a whole bunch of information on what happened.

The thing is, targeting specific content piecemeal would take a lot of time and internet opponents want a more effective way of trying to take out the internet entirely. So, they came up with a novel concept designed to be an endrun around the content question. That is to target the “design” of the site or take on “the algorithm”. Rather than go after the great content that is on the web today, go after how that content is displayed.

Of Liability and Algorithms

Often, opponents to free speech and the internet love to simply use the term “algorithm” and paint it as this big scary thing that must be stopped. They sometimes refer to it as an opaque thing that is causing chaos and destruction that is being unleashed onto the world. It ultimately is a great example of how internet opponents try to take advantage of ignorance to push their agenda.

The reality is that an algorithm is a pretty innocuous thing. If you sort a comment section based on when it was posted, that is an algorithm. It’s a very simple one, but it is, nevertheless an algorithm. It’s just a way to sort content online. If you organize pictures of plants based on the date the photo was taken, congratulations, you created an algorithm. Same with sorting it in alphabetical order based on the plant name in question or sorting it by species type, where it is grown, or however else you want to organize it. At the end of the day, it is just organization and isn’t something that is inherently dangerous. If anything, it is helpful.

I know that some are going to insist and argue that the “dangerous algorithm” is designed to make the platforms addicting. This by utilizing things like infinite scroll among other things. This is a deeply problematic argument to be making for a number of reasons.

For one, designing something to get people to use it more is something that occurs in a multitude of industries. In television, for instance, the industry employs a technique known as broadcasting a “TV promo”. It’s promotional material for future programs that are going to be broadcast. The idea is, of course, to get people to keep watching TV. Using internet critics own arguments, a TV promo fosters addiction to watching TV and, therefore, should not be a feature in television programming. I don’t recall anyone making such an argument these days because, as I’m sure many would say, it’s a completely ridiculous notion. The thing is, this is the exact same argument that is being made for platforms. Platforms make recommendations, advertising other kinds of material on the platform. Why are recommendations on a platform somehow bad, yet TV promos completely innocent? It’s the exact same thing, just on a different medium.

For that matter, anything related to advertising could be placed in the same category. If a company wanted to get people addicted to buying toys, they would employ paid for advertising on TV. In that same line of reasoning by critics, advertisers are fostering an “addiction” to their product and should be done away with. A reasonable person would point out that this line of thinking would destroy the TV and radio industries as well as significantly harm the business partners that advertise with them. They would be correct, but by admitting this, they also admit that fostering so-called “addiction” to media content and products is only OK when they do it. It’s a deeply flawed argument through and through.

For another, in the US, the way a company displays product is protected speech. The US famously has first amendment protections that protect expression. Arguing that a company cannot choose to display something in general is an affront to the legal protections of expression. Processes are already in place to take down content that is illegal. It’s basically arguing that a book store cannot decide how they display books on their shelf in their own business. Are there rules and exceptions? Sure, but to say that they don’t have the right to display their products in ways they see fit in general is an absurd argument and would be a slam dunk freedom of expression case. This is what is being argued in this case and why the platforms have a pretty easy path to appealing this decision.

The Threat to Creators

The precedent that this court case threatens to set is a particularly nasty one. There are numerous businesses that depend on a large platform to promote their stuff. Whether this has to do with news content, selling products in general, video games, or the publication of video content, a lot of people stand to lose here.

Immediately, if this case stands, then the YouTube ecosystem stands to collapse. If material cannot be displayed in any way that resembles organization, then the platform would immediately become unusable alone. Many creators depend on the algorithm connecting their content to their audiences. Yes, it’s a highly flawed system, but for some lucky creators, it works. It’s a fairly safe bet that their livelihoods are put in jeopardy because of this because people would have a significantly harder time finding their content at best.

Of course, it’s not just YouTube creators that are threatened by all of this. Even so-called “premium” creators who use platforms like Netflix of Amazon Prime stand to lose here. After all, if a YouTube algorithm can be classified as “addicting”, then any platform with a recommendation system is threatened by this. This would very likely mean that viewership would plummet on major premium platforms would drop as well since browsing on these platforms would become all but impossible without a recommendation system. As a result, those creators who use those platforms are going to suddenly see their viewership (and revenues!) plummet.

While some fixate on the idea that this could be a major threat to the platforms, but the reality is that everyone in the chain – including many of the people behind the media companies that have lobbied so fiercely against the platforms – stands to suffer. This isn’t a “ruling hurts platforms” story, this is a “ruling hurts platforms and everyone who has ever used them in any way” story.

Experts Agree: This is a Bad Ruling

Contrary to what the mainstream media would have you believe, experts are worried about what this ruling really represents. Eric Goldman, for instance, offered his thoughts on this ruling:

Together, these rulings indicate that juries are willing to impose major liability on social media providers based on claims of social media addiction. That liability exposure jeopardizes the entire social media industry. There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.

The Los Angeles jury verdict is the first of three bellwether trials in Los Angeles, with more bellwether trials to follow in summer in the federal case. As such, today’s verdict is just one datapoint about liability and damages. The other trials could reach divergent outcomes, so this jury verdict isn’t the final word on any matter.

The social media defendants will appeal the adverse jury verdicts. They have several good grounds for an appeal, including how products liability claims apply to intangible services, questions about who caused the victims’ harms, and the scope of speech-protective doctrines like the First Amendment and Section 230. If the appeals court disagrees with the lower court on one or more of these issues or others, the jury verdicts might be reduced or wiped away entirely.

In parallel with the court cases, legislatures have enacted laws providing remedies against social media services and others that substantially overlap the plaintiffs’ claims. No matter what happens in the trials, social media services also will have to avoid or overturn those laws as well if they hope to retain the status quo.

Due to the legal pressure from the jury verdicts and the enacted and pending legislation, the social media industry faces existential legal liability and inevitably will need to reconfigure their core offerings if they can’t get broad-based relief on appeal. While any reconfiguration of social media offerings may help some victims, the changes will almost certainly harm many other communities that rely upon and derive important benefits from social media today. Those other communities didn’t have any voice in the trial; and their voices are at risk of being silenced on social media as well.

Mike Masnick of TechDirt also weighed in on this:

This distinction — between “design” and “content” — sounds reasonable for about three seconds. Then you realize it falls apart completely.

Here’s a thought experiment: imagine Instagram, but every single post is a video of paint drying. Same infinite scroll. Same autoplay. Same algorithmic recommendations. Same notification systems. Is anyone addicted? Is anyone harmed? Is anyone suing?

Of course not. Because infinite scroll is not inherently harmful. Autoplay is not inherently harmful. Algorithmic recommendations are not inherently harmful. These features only matter because of the content they deliver. The “addictive design” does nothing without the underlying user-generated content that makes people want to keep scrolling.

As Eric Goldman pointed out in his response to the verdicts:

The lower court rejected Section 230’s application to large parts of the plaintiffs’ case, holding that the claims sought to impose liability on how social media services configured their offerings and not third-party content. But social media’s offerings consist of third-party content, and the configurations were publishers’ editorial decisions about how to present it. So the line between first-party “design” choices and publication decisions about third-party content seems illusory to me.

If every editorial decision about how to present third-party content is now a “design choice” subject to product liability, Section 230 protects effectively nothing. Every website makes decisions about how to display user content. Every search engine ranks results. Every email provider filters spam. Every forum has a sorting algorithm, even if it’s just “newest first.” All of those are “design choices” that could, theoretically, be blamed for some downstream harm.

The whole point of Section 230 was to keep platforms from being held liable for harms that flow from user-generated content. The “design” theory accomplishes exactly what 230 was meant to prevent — it just uses different words to get there.

Bad defendants make bad law. Meta is unsympathetic. It’s understandable why they get so much hate. It’s understandable why people (including those on juries) are willing to accept legal theories against them that would be obviously problematic if applied to anyone else. But legal precedent doesn’t care about your feelings toward the defendant. What works against Meta works against everyone.

Both raise excellent points. With Goldman, the platforms are very likely to appeal and there are plenty of avenues to go with here. Goldman also points out the speech implications which I already went through above.

With Masnick, indeed, it’s extremely difficult to separate the content from the recommendations. Recommendations and content are so intertwined, you can’t really separate the two. Without content, you can’t really have recommendations. Masnick’s example highlights that very well. Are you really going to be “addicted” to several recommended video’s about paint drying? No. The content that is being recommended matters and trying to argue that the recommendation system is at fault is trying to dance around the major problem that this all has: you are still trying to regulate speech and circumvent Section 230 in the process.

What the Science Says About Social Media “Addiction” and “Harm”

I know there will be those that look at all of this and says, “you write a convincing argument, but you don’t have any evidence to back up your claims. Social media has long been known to be addicting and harmful.”

Alright then, let’s look at the science, shall we? Last year, I wrote about a study tackling this very issue. Long story short, the findings found that people were getting freaked out by media reports about social media addiction and jumping to the conclusions that they were “addicted”. Yet, when the actual use was analyzed, only 2% even displayed warning signs that their use was problematic. In other words, the mainstream media was called out for inducing a moral panic over social media use and blowing things far out of proportion and, as a result, causing very real harm.

This wasn’t even close to a one-off result, either. As people say in science, being able to repeat a result further bolsters the original findings. So, we can turn to a multitude of other studies that looked at the harmful effects of social media and kept coming up empty-handed. As a result, the science is quite clear: social media is not inherently harmful to people. It either has a neutral impact or a net positive impact.

Ultimately, a lot of the hate on social media is derived from a long-standing quest to take all matters of social problems facing society and taking the easy road out by saying that it’s all the fault of social media. Is ADHD being over-diagnosed? Blame social media. Is human smuggling a problem? Blame social media. Literally anything else that’s happening in modern society? Blame social media. Obviously, this isn’t warranted, but scapegoating social media for everything has been a time-honoured tradition for the mainstream media regardless of the accuracy of the accusations.

The reality is that you can’t blame technology for everything that is wrong with society. Misinformation has existed FAR longer than the existence of social media. Anti-science campaigns have been around long before the internet even existed. Mental health issues have been around for thousands of years. The existence of the internet is barely even a blip on the radar when it comes to counterfeiting and general crime. If you take the entire internet away, these problems will continue to persist. In fact, I would argue that simply blaming social media for everything is actually doing more harm than good because it is a distraction from any real progress to address these core underlying problems society has today. Anyone who says otherwise is a liar, a fool, or both.

The Mainstream Media Spreads Misinformation

Unsurprisingly, the mainstream media who have been notoriously biased when it comes to things like the coverage of the internet have pushed out considerable misinformation in the wake of the ruling.

One of the returning myths that I’ve witnessed was the return of comparing social media use to smoking. This has always been a false comparison. When you smoke a cigarette, you are inhaling harmful chemicals into your lungs. One of those chemicals is nicotine which is well understood to be highly addicting. Either way, you are putting something in your body and your body is reacting to that introduction. The chemicals cause cancer and gets you hooked on smoking more. Trying to quit smoking is notoriously difficult because you have very real withdrawal symptoms. With social media, you aren’t putting something in your body. There is nothing you are physically consuming. What’s more, your body is not reacting negatively when you stop watching or reading that material. Are you convulsing by not being on social media? No. Are you getting migraines by not being on social media? No. Is your body shaking because you’ve stopped being on social media? Probably not. It’s a really dumb comparison and I seriously wish the mainstream media would stop pushing this false comparison.

Another claim I’ve seen pushed by the mainstream media is that social media is causing things like teen suicide. In an overwhelming majority of the cases I’ve seen related to this, there were underlying conditions that was pointed to to explain why someone would commit suicide. Maybe there was a criminal stalking that person. Maybe they were being harassed by acquaintances of family. In some cases, they had an addiction to a certain substance. In other cases, they were suffering from mental health issues and may or may not have had access to mental health help to deal with those symptoms. In pretty much every case I’ve ever read, the blaming of social media was, at best, misleading. Further, if anything, social media helped investigators look into different cases because so much of the interactions was either written down or recorded. Investigators were able to obtain records that would otherwise not exist.

Another one was that social media is the cause of bullying. Again, bullying has been around far longer than social media. Believe me, I know from personal experience because I have been relentlessly bullied when I was younger. The problems I faced were that staff were more inclined to blame the victim for the bullying and otherwise sweep the bullying under the rug. There’s no record of the harassment and bullying because I grew up in a time before social media was a massive thing. I’ve been kicked in the eye, a stone dropped on my skull, had hackey sacks whipped at me, gang assaulted on multiple occasions, incurred mental abuse, and a whole bunch more. You know what wasn’t present at the time in any big way? Social media. The only thing social media did was bring this crap further into light. You take social media away and the only effect you’re going to have is victims having fewer places to turn to for help and further hiding these problems.

What was especially annoying in all of this is witnessing TV presenters practically join the so-called “social media critics” in popping the champagne in all of this. Being both ignorant and biased is nothing new when it comes to the mainstream media and technology, but it was infuriating to witness. All of the unfounded claims made by those appearing on different programs went unchallenged and it was all presented in an insanely one-sided fashion. Not only is an appeal inevitable here, but so is the fact that if this kind of ruling were to stand, it would backfire on those very same media outlets in a pretty massive way as well (as I highlighted above).

At any rate, it is all infuriating to watch. The blatant bias and disinformation being pushed all day yesterday did a lot to make my blood boil. We can only hope that this bad ruling gets overturned or a lot of people are going to get hurt.

Drew Wilson on Mastodon, Twitter and Facebook.