When is it okay to use social media to make fun of people?

There is news from California that discusses a Facebook page called 530 Fatties that was created to collect photos of and poke fun at obese people. It’s a rude project, and sets the context for discussing some intriguing legal and normative issues.

Apparently the site collects photos that are taken in public. One generally doesn’t have a privacy interest in being photographed while in public places. And that seems pretty straightforward if you stop and think about it — you’re in public after all. But should technology change that legal analysis? Mobile devices with good cameras connected to high speed broadband networks make creation, sharing and shaming much easier than it used to be. A population equipped with these means essentially turns all public space into a panopticon. Does that mean the individual should be given more of something-like-privacy when in public? If you think that’s crazy, consider it in light of what Justice Sotomayor wrote in her concurrence in the 2012 case of U.S. v. Jones: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables [one] to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Apart from privacy harms, what else is at play here? For the same reasons that mobile cameras + social media jeopardizes traditional privacy assurances, the combination can magnify the emotional harms against a person. The public shaming that modern technology occasions can inflict deeper wounds because of the greater spatial and temporal characteristics of the medium. One can now easily distribute a photo or other content to countless individuals, and since the web means the end of forgetting, that content may be around for much longer than the typical human memory.

Against these concerns are the free speech interests of the speaking parties. In the U.S. especially, it’s hardwired into our sensibilities that each of us has great freedom to speak and otherwise express ourselves. The traditional First Amendment analysis will protect speech — even if it offends — unless there is something truly unlawful about it. For example, there is no free speech right to defame, to distribute obscene materials, or to use “fighting words.” Certain forms of harassment fall into the category of unprotected speech. How should we examine the role that technology plays in moving what would otherwise be playground-like bullying (like calling someone a fatty) to unlawful speech that can subject one to civil or even criminal liability? Is the impact that technology’s use makes even a valid issue to discuss?

Finally, we should examine the responsibility of the intermediaries here. A social media platform generally is going to be protected by the Communications Decency Act at 47 USC 230 from liability for third party content. But we should discuss the roles of the intermediary in terms other than pure legal ones. Many social media platforms are proactive in taking down otherwise lawful content that has the tendency to offend. The pervasiveness of social media underscores the power that these platforms have to shape normative values around what is appropriate behavior among individuals. This power is indeed potentially greater than any legal or governmental power to constrain the generation and distribution of content.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

2 thoughts on “When is it okay to use social media to make fun of people?

  1. Ben Cotton

    This is an interesting question, and a great example of the divide between what’s legal and what’s right. If I were running a “fatties” site, I’d be nervous about hiding behind the Communications Decency Act. There’s a precedent against revenge porn sites and it doesn’t take much imagination to extend that to non-pornographic-but-still-harassing sites. Where 530 Fatties differs is that the photos are public instead of private and they’re not extorting the subjects for money.

    That seems like a meaningful difference, though it’s certainly objectionable. It will probably take several court cases to settle the matter. Writing a law that could prohibit such sites while still allowing “constructive free speech” (for lack of a better term) would be incredibly challenging. Certainly there are a number of use cases where the unauthorized (by the subject of the photo) use of a photo taken in public should be protected.

  2. Cara

    This is one of the trickier issues to solve using the law. I have my doubts that lawmakers or courts would ever be able to finely tune a rule well enough to do something about the acts that we find very objectionable without harming the most fundamental free speech rights. This may be a situation where some existing law for things like negligent or intentional infliction of emotional distress can address the harms you outline without us having to create new laws.

    This also reminds me of an argument I heard at the IAPP conference in March that the best defense to invasion of privacy is essentially a good offense. By publicizing the people who do immoral things, we take their tools and shame them into better behavior. I am still not sure what I think about that argument.

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