Everyone I know is probably getting tired of me saying that we have to be wary of the communication technology we use. A lot of it looks like it has a beneficial purpose on the surface but is something else when you dig into it a little deeper. I am a heavy user of social media and technology for marketing purposes so rather than stop using it I’m trying to be more careful about the amount of exposure I have and the type of exposure. I have never used Snapchat. For my homework I had to write about an indecency lawsuit against Snapchat so had to quickly read about how it works and what it does. It is widely believed in some circles that large segments of leaders in media, culture and business are constantly looking for ways to groom minor children for sexual exploitation. Do you agree or disagree? This paper has been graded but I didn’t change anything before publishing. I am not an attorney or law student, I am a Marketing and Advertising Communications major.
Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
29 November 2020
The Snapchat Indecency Lawsuit
Snapchat is a messaging app that also features paid advertising and content reformatted and republished from other information providers, known as Discovery partners. When Discover first launched, Snapchat stated on its blog that the Discover partners would be editors and artists who are “world-class leaders” providing “important” content, superior to social media which shows only what is “most recent or most popular” (Team Snapchat).
The Discover feature of Snapchat generated a lot of criticism when it was new. Among other complaints, a lot of users disliked the Discover content being featured prominently in the display and being difficult to ignore if one was using the app for other purposes such as chatting or photo sharing (Dredge). Complaints about sexually offensive material being pushed to minors led to a class action lawsuit against Snapchat citing violations of Sections 230 and 231 of the Communications Decency Act of 1996 in addition to other violations of State consumer law (Doe, John vs. Snapchat, Inc.). Here is a listing of the five causes of action in the complaint (Doe, John vs. Snapchat, Inc.):
- Violations of Unfair Business Practices Act [Cal. Bus. & Prof.Code § 17200]
- Violations of 47 U.S.C. §230
- Unjust Enrichment
- Injunctive Relief
At the time of the lawsuit, around 23 percent of users of Snapchat were between the ages of 13-17 (Doe, John vs. Snapchat, Inc.). Snapchat was not accused of singling out underage users to push sexually oriented content to, rather the lawsuit was based on failing to warn users about content that was inappropriate for minors and failing to provide a way to filter out unwanted adult-oriented sexual content (Doe, John vs. Snapchat, Inc.).
Here are some titles of sampled “important” articles that “world class” editors and artists selected for their users that were alleged by the plaintiffs to violate decency and consumer laws:
- “10 Things He Thinks When He Can’t Make You Orgasm”
- “F#ck Buddies Talk About How They Kept It Casual”
- “23 Pictures That Are Too Real If You’ve Ever Had Sex With A Penis”
In the past, marketers have been criticized for using cute animal mascots to make beer brands more appealing to minors while claiming that they are only marketing to people who are old enough to legally consume the product (Andrews, Newman). It was alleged in the Snapchat lawsuit that some of the images accompanying the offending articles appealed to kids by showing Disney characters paired with sexually suggestive captions and an illustration showing two dolls in a dollhouse engaging in sexual intercourse (Doe, John vs. Snapchat, Inc.). In the opinion of the plaintiffs, such images appear to be “directly marketed to minors based on the use of cartoons, childhood relatable images, and very young looking models” (Doe, John vs. Snapchat, Inc.).
Indecent material can be defined in different ways. The Supreme Court considers indecent material to be “nonconformance with accepted standards of morality” (Trager et al 457). To the FCC, indecency consists of “sexual expression and expletives” that are deemed harmful to children and therefore prohibited on broadcast television and radio at times of the day when children are likely to be exposed (Trager et al 442, 456).
By selecting and curating content, it could be argued that Snapchat took on the role of information content provider. A Snapchat spokesperson said that “Our Discover partners have editorial independence…” (Gardner). Snapchat may want to give the impression that the discover partners are truly independent but they can be de-platformed instantly if the CEO does not like the content they provided, as former Discover partner Yahoo found out (Flynn).
Section 230 of the Communications Decency Act of 1996 puts most of the burden for avoiding offensive non-broadcast content on the end user, or the parents or guardians of the end user if the person is a minor (47 U.S. Code…). The law distinguishes between an interactive computer service, which is a passive tool for users to publish and consume the content they choose, and an information content provider that selects material for distribution (47 U.S. Code…).
However, I think a case can be made that Snapchat had a duty to warn. Section 230 subsection D, Obligations of interactive computer service, states (47 U.S. Code…):
“A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.”
Snapchat does not allow users under the age of 13, and asks for birth dates during the signup process, so they knew that minors were using their app (Doe, John vs. Snapchat, Inc.). In that light, I think it could be argued that Snapchat was at best negligent because of their following actions:
- Deliberately choosing brands such as Cosmopolitan, MTV, Comedy Central and Vice to provide content
- Pushing the content headlines by making them part of the user interface so that everyone sees them without seeking them out
- Pushing the content headlines unfiltered by age
- Combining sexual content with images that appeal to children
- Dishonesty about their editorial goals and standards for the Discover content
Andrews, Robert M. “Teetotaler Thurmond Raps Spuds MacKenzie Beer Promotion.” The Associated Press, 1987, apnews.com/article/03e7a81bdc59e057aa34abefeaa82cce. Accessed 29 November 2020.
Doe, John vs. Snapchat, Inc. 2:16-cv-04955. 2016. www.scribd.com/document/317726589/Snapchat-lawsuit. Accessed 28 November 2020.
Dredge, Stuart. “Snapchat redesign promotes Discover – but some users are unhappy”. Guardian News & Media Limited, 2015, www.theguardian.com/technology/2015/jul/14/snapchat-redesign-discover-partners-stories. Accessed 29 November 2020.
Flynn, Kerry. “Snapchat Discover One Year Later: How 23 Media Companies Are Building Stories For Evan Spiegel.” IBTimes LLC., 2016,
www.ibtimes.com/snapchat-discover-one-year-later-how-23-media-companies-are-building-stories-evan-2281851. Accessed 29 November 2020.
“47 U.S. Code § 230 – Protection for private blocking and screening of offensive material.” Legal Information Institute, 2020, www.law.cornell.edu/uscode/text/47/230. Accessed 29 November 2020.
Gardner, Eriq. “Snapchat Sued for Exposing Kids to Media Partners’ ‘Sexually Offensive Content’.” The Hollywood Reporter, 2016, www.hollywoodreporter.com/thr-esq/snapchat-sued-exposing-kids-media-909096. Accessed 28 November 2020.
Newman, Andrew Adam. “Youngsters Enjoy Beer Ads, Arousing Industry’s Critics.” The New York Times Company, 2006, www.nytimes.com/2006/02/13/business/media/youngsters-enjoy-beer-ads-arousing-industrys-critics.html. Accessed 29 November 2020.
Team Snapchat, “Introducing Discover.” Snap Inc., 2015, www.snap.com/en-US/news/post/introducing-discover/. Accessed 29 November 2020.
Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.