Instagram's Big Experiment With De-Prioritizing 'Likes' Fizzles As Some People Apparently Really Like 'Likes'

from the ah-well-nevertheless dept

Back in the fall of 2019, we wrote about how Instagram was experimenting with hiding "likes" from US users, to try to cut down on the awkward incentives it created -- such as people obsessing over who and how many people liked the pictures they posted. It was an interesting move, and we appreciated the willingness to experiment with making sure the platform wasn't just encouraging socially problematic behavior. However, now the company has announced that some people really got upset without their likes.

What we heard from people and experts was that not seeing like counts was beneficial for some, and annoying to others, particularly because people use like counts to get a sense for what’s trending or popular....

I mean... that seems obvious? It's not clear why you needed to run a test to find that out. And wasn't part of the point of the experiment to move away from people obsessing over "trending" or "popular" content? Either way, Instagram's solution is to pass the decision on to users.

So... now it's all optional. Perhaps that's better than forcing it on everyone, but it is interesting:

Starting today, we’re giving you the option to hide like counts on all posts in your feed. You’ll also have the option to hide like counts on your own posts, so others can’t see how many likes your posts get. This way, if you like, you can focus on the photos and videos being shared, instead of how many likes posts get.

To some extent this is great. Having more options is good and giving more powers to the end users is obviously good. But it sure sounds like the defaults will still be to include likes, and that means the vast, vast majority of users will still have them.

Casey Newton has some more details about what happened, and says that despite Instagram boss Adam Mosseri really thinking this was going to be a big deal, it turned out that people just didn't really care one way or the other.

“It turned out that it didn't actually change nearly as much about … how people felt, or how much they used the experience as we thought it would,” Mosseri said in a briefing with reporters this week. “But it did end up being pretty polarizing. Some people really liked it, and some people really didn't.”

As Casey notes, this seems to go along with a lot of recent research suggesting that some of the early panic about how "the kids these days" were all obsessing about likes and trends and what not... turns out to not really be that true. It certainly has a lot of the hallmarks about a moral panic involving a new technology and "the kids these days."

Casey concludes that the unexpected lesson from the varied response to this experiment is really that users want more control over their own experience, which is certainly a message some of us have been banging the drum on that point for years. Of course, it remains to be seen if Instagram (and Facebook) bakes that lesson into other parts of the platform going forward...

Filed Under: favorites, likes, social media
Companies: instagram

Twitter And Instagram Both Begin Experiments In Decreasing The More Socially Questionable Incentives Of Their Platforms

from the fascinating-to-see dept

Two separate news reports last week highlighted how both Twitter and Instagram appear to be taking to heart arguments made about how both of those platforms may (inadvertently) encourage questionable behavior. Instagram will begin hiding "likes" from users in the US to cut down on the dopamine rush of trying to maximize those bits of pointless social validation:

Months after the company tested hiding "like" counts in Australia, Brazil, Canada, Ireland, Italy, Japan, and New Zealand, CEO Adam Mosseri announced today at WIRED25 that some Instagram users in America can expect their like counts to vanish from public view.

The company will begin testing next week, at first rolling out the change to a limited number of accounts.

Meanwhile, Twitter is going to begin experimenting with some small nudges to not rush in to attack people as a first response. The moves here are a lot more subtle than Insgram's hiding of likes and involve encouraging the use of emoji.

In a meeting at its San Francisco headquarters in late October, Gasca and Suzanne Xie, director of product management at Twitter, showed off two experiments among several that will go live in the coming weeks: In the first, Twitter will add an emoji to a retweet, giving people a chance to quote-tweet without going into the compose field. Gasca and Xie want to find out if this feature might encourage people to express more nuanced emotions, putting a damper on dunking and mindless retweeting.

In the second experiment, Twitter will automatically suggest people use an emoji in their replies. If you like something, you could use the heart-eyes emoji. If you don’t, you could use the red circle with a line going through it. But if you pick a negative emoji, Twitter will ask, “Why do you disagree?” — which it hopes will prompt a more thoughtful reply, rather than a flame war.

To be honest, I'm not entirely sure how or why this would work to decrease negative responses -- though at least popping up the interstitial question of "why do you disagree" (as per the second experiment) might drive at least some people to think twice before rushing to dunk on someone.

I'm not sure either of these moves will really change the overall incentives or how these platforms are used, but I find both fascinating for different reasons: a much more clear acknowledgement from both platforms that overall incentives matter, and that small design choices can have outsized influence on how the platforms are used. Given that, it's fascinating to see both platforms then choose to experiment with the little nudges built into the design of their platforms to see how it will play out in terms of usage -- especially regarding socially questionable activities on both platforms.

Of course, I can imagine how their could be some pushback as well, concerning how these are the kinds of subtle paternalistic moves that some people fear will be used to influence behavior in manners that some might not like. I think it's pretty clear that, in both cases above, the sites are aiming to improve the overall "user health" levels on their platform, but I can see how some might (or absolutely will!) claim that they're being used to tamp down on certain viewpoints or ideas -- which, to some extent, highlights why there are no "win" conditions for platforms making these decisions. Every move will be criticized in one way or another.

If you can get past that, however, I think it's a good thing that the platforms are moving to explore how these kinds of tweaks can improve their platforms and how people interact with them.

Filed Under: behavior, emoji, likes, social behavior, social media, social networks, trolling, tweaks
Companies: instagram, twitter

Facebook Files Questionable Lawsuit Over Fake Followers And Likes

from the is-that-truly-hacking? dept

Over the last year or so, a key focus of Facebook's has been to battle what it calls "coordinated inauthentic behavior." While the phrase may sound vaguely Orwellian, I actually appreciate the thinking behind it. It's one thing to say you're going after "fake accounts" or "propaganda" or "trolls," but that language is imprecise, and certainly doesn't provide much clarity for what Facebook is actually targeting. Indeed, using vague language continues to be a massive problem in all sorts of content moderation challenges. So, instead, Facebook focused on "coordinated inauthentic behavior," which is much more definable, and also neatly encapsulates a lot of activity that most people all agree is at least somewhat problematic in a variety of contexts. I've also appreciated some of the actions that Facebook has taken to try to stop or prevent such "coordinated inauthentic behavior."

What I don't appreciate is a highly questionable lawsuit Facebook filed on Friday, again supposedly targeting coordinated inauthentic behavior on its platforms: in particular fake likes and fake followers. Now, let's be clear: no one is suggesting that services that provide fake likes or fake followers are a good thing. They are scams and they are designed to mislead people. I think Facebook has every right to try to delete such fake likes and fake followers from its platforms.

What I'm less sure of, however, is if Facebook should be able to sue the companies (and the individuals behind those companies) for creating such a service. But that's what Facebook has done. The complaint argues that it's a CFAA violation (and a violation of California's version of the CFAA). If you don't recall, the CFAA (the Computer Fraud and Abuse Act) was the law that was originally designed to go after malicious hackers, but was written in such broad and vague language -- regarding things like "unauthorized access" and "exceeding authorized access" -- that it's been used in all sorts of questionable ways, including not obeying a web site's terms of service. It's been referred to as "the law that sticks" when no other law can be used against "vaguely icky" activity done on a computer.

One of the most annoying things over the past few years is seeing big internet companies regularly try to use the CFAA and expand what it covers in ways that are extraordinarily broad and could lead to real problems down the road. Facebook has actually done this for years, with a big case being the time it sued a site, Power Ventures, which helped users aggregate all their various social network info. This was not "hacking" in any real sense, and the access was "authorized" by the end user, but Facebook didn't like it and argued that because it sent Power a cease and desist letter, that any further access violated the CFAA. Unfortunately, the courts have agreed with Facebook, setting a dangerous precedent.

And, now, Facebook has gone back to the well, arguing that setting up fake likes and fake followers also violates the CFAA:

Defendants’ access and use of Facebook and Instagram’s computers and computer systems was unauthorized because Defendants accessed Facebook and Instagram’s computer network after Facebook and Instagram disabled their Instagram accounts and sent cease and desist letters to Defendants revoking their access.

Facebook and Instagram computers and servers are protected computers as defined by 18 U.S.C. § 1030(e)(2).

Defendants violated 18 U.S.C. § 1030(a)(4) because they knowingly and with intent to defraud accessed Facebook and Instagram-protected computers by sending unauthorized commands to Facebook and Instagram computers. Defendants sent the commands to Facebook and Instagram computers to manipulate Instagram’s service by fraudulently inflating likes of certain Instagram accounts. Defendants did these acts in exchange for profit.

Defendants violated 18 U.S.C. § 1030(a)(5)(A) because they knowingly and intentionally caused the transmission of a program, information, code, or command, and, as a result of such conduct, intentionally damaged Facebook and Instagram-protected computers.

Now, I dislike fake likes and fake followers on social media just as much (if not more) than the average person. I'm aware of some other news sites that some might consider competitors of ours that have used those tactics to build up larger claimed social media followings. And I can see how that's unfair.

But is it truly hacking? Is it truly "unauthorized access"? Note that Facebook calls out that it sent cease and desist letters to the defendants, as per the 9th Circuit's ruling in the Power Ventures case. We warned that such a case would set a dangerous precedent, and once again, here's Facebook claiming that if it sends a cease and desist to a company for participating in an activity which the Facebook platform allows technologically that it's magically breaking the law.

To be clear: Facebook should have a free hand in kicking these guys off of the platform -- and if it can figure out the accounts posting the fake likes and fake follows, it can and should kick them off as well. But suing the company behind it under an anti-hacking law is a step too far. It's treating it's own inability to clean up its own platform as a legal issue. And it's not difficult to see how such a precedent can be abused legally by all sorts of internet platforms. Perhaps some people don't mind, and feel that any action taken against spammers/fakers/etc. should be fine. But be careful what you wish for. Allowing this use of the CFAA will only serve to give big internet platforms much more power over what you and anyone else can do on those platforms -- including how you might be able to use third party services to better protect your own privacy or take control over your own data.

It's no surprise, given the Power Ventures case, that Facebook now views the CFAA as a weapon it can use against third party services on its platform. But it provides way too much power to turn issues of Facebook's own failure to police its own platform into a legal issue dragged into the federal court system.

Filed Under: cfaa, coordinated inauthentic behavior, fake, followers, likes
Companies: facebook, likesocial

Why The Whole Freaking World Knows That Rep. Jeff Fortenberry Hates Being Called Fartenberry

from the don't-threaten-people dept

I have to admit that before yesterday, I'd never even heard of US Representative Jeff Fortenberry from Nebraska's 1st Congressional District (even though I visited his district while he was in office). However, boy am I hearing an awful lot about Rep. Jeff Fortenberry, and the one thing I will now always associate with Rep. Jeff Fortenberry is that he and his staff are so offended that anyone might call him "Fartenberry" that they'll ignore the 1st Amendment of the Constitution and threaten a professor for the grievous offense of liking a Facebook post with an image of a defaced campaign sign changing his name.

No, really.

This story has a bit of everything. It starts with this, however. A Nebraska blog, Seeing Red Nebraska, posted the following to its Facebook page a couple weeks ago:

If, somehow, you cannot see that, it's a campaign sign for Rep. Jeff Fortenberry that has been somewhat crudely "altered" such that Fortenberry's face now has two giant googly eyes, his name has been changed to "Fartenberry" by adding a line to the "o" in his last name, and whatever the third item in the following list really is, was changed to: "Strong Families; Strong Communities; Strong ODOR."

A bit sophomoric, but, hey it happens.

What happened next, however... You see, University of Nebraska-Lincoln political science professor Ari Kohen "liked" that post on Facebook. And, apparently, Rep. Jeff Fortenberry's staff decided to scan through all the likes on that post, and decided that Kohen couldn't possibly get away with liking such a thing. So, Fortenberry's Chief of Staff, Dr. William "Reyn" Reynolds Archer III decided to call Kohen and chew him out and threaten him over the "like." Archer left a voicemail for Kohen, who was away at a conference. When Kohen didn't call him back quickly enough, Archer then emailed Kohen's department supervisor, Kohen's dean, and the chancellor of the university to complain about Kohen liking the image.

Again, let's just be clear what'a happening here (and it's going to get crazier). Someone else made some additions to the sign. Someone else took a photo. Someone else posted it to Facebook. The sole thing that Kohen did was click the "like" button because he found it amusing. And Fortenberry's chief of staff emailed Kohen's boss, Kohen's boss's boss and Kohen's boss's boss's boss to complain.

Kohen then called Archer back, and they ended up talking for 53 whole minutes, though the key 7 minutes gives you a good taste of what went down.

Amusingly, if you listen to the full call, it starts out with Archer specifically saying: "Look, I want to just be really clear that we support First Amendment." Then, he follows that up by saying this nonsense: "I think the thing that we're concerned about is liking vandalism which is against the law." The call goes on and just gets more and more insane (yes, dear readers, I listened to the whole 53 minutes for you). At one point, Archer tries to point to Jerry Seinfeld's comments on college students as evidence that... um... something.

Humor has changed a lot over the last five years. What we thought was funny... and even Seinfeld is saying it's really difficult to be a comedian nowadays because things are misunderstood in the context of humor. Yes you can have a laugh about potty humor or about googly eyes, but the point is you're also secondarily liking and validating vandalism without... in a way that you may not have intended, but is a direct validation of vandalism.

The call goes on and on like this, with there being two main complaints, both of which are bullshit:

1. This is an endorsement of vandalism (and even potentially "violence") and...
2. Some others had highlighted Kohen's "like" and were using the fact that Kohen is a professor at UNL to further promote this image.

From there, Archer "threatens" to "put this out there":

And frankly we have a 1st amendment opportunity to put you out there in front of everybody and put it clearly as "why is a professor liking vandalism?" We can do that publicly. Would you like that? That's our 1st Amendment right too?

Kohen, who certainly seems to have a much better grasp of the optics here, points out to Archer how that might backfire:

Kohen: I think it'd be a terrible idea for you, if I'm being perfectly honest.

Archer: No. How so?

Kohen: Because the [disbelieving laugh] optics of this are terrible Reyn.

Archer then complains that he was calling to "come to an accommodation" and is frustrated that it seems "that is not possible with you." To which Kohen rightly asks (incredulously) what possible "accommodation" he would think is necessary or appropriate. To which Archer, hilariously replies:

For you to understand the optics of this, and you don't...

About those optics. Since this went public late yesterday, tons of publications have picked up this story. Here's a snapshot from Google News:

Now, perhaps I'm no communications expert, but I don't see any of those articles calling out Kohen for daring to "like" a silly sign defacement. They all seem to be reflecting pretty negatively on Fortenberry and his chief of staff.

Speaking of his chief of staff, Archer seems to have a bit of a history of being controversial himself. The first President Bush appointed him as the head of "Family Planning" at the Department of Health and Human Services, leading to a bunch of complaints about his lack of qualifications for the job:

"He has no credibility in the family planning community," said Judith M. DeSarno, executive director of the National Family Planning and Reproductive Health Association (NFPRHA), which represents clinics funded by Title X. "He is well-meaning, but he confuses empathy with the idea that he has to protect people from themselves." NFPRHA disinvited Archer to its last conference because so many of his views were "anathema" to its members, DeSarno said. Archer said he remains ready to work with them.

"I have nothing in common with the man, and no respect for him based on his political attitude," said Joan Hinneberry, who administers the Title X program in Colorado. "I have real problems with someone who accepts tax dollars to run a program he's basically trying to destroy."

"I advise people never to talk to him alone, because he twists what you say and uses it against you," said Betsy Render, executive director of the Wyoming Reproductive Health Council. "We have lots of problems in family planning, and the only thing he wanted to talk about {during a visit} was abortion."

Later, the younger Bush, George W., appointed Archer to be the Texas commissioner of health, where he made quite a bit of news for what was described as "nutty (and possibly racist) comments" that eventually resulted in Archer resigning in controversy. Indeed, when Fortenberry hired Archer in 2016, he had to defend the hiring over those comments. Some of those comments came from (wait for it...) a tape recorded conversation made by a woman who worked for Archer which was described as "a rambling, mostly one-sided conversation," in which Archer makes repeated nonsensical references to his employee's race, and talks about lynchings and privilege.

Anyway, back to the call. Kohen continues to ask why this conversation is even happening, and Archer keeps falsely stating that Kohen was supporting vandalism, and then makes various references to other professors getting negative publicity over their political views, with Kohen accurately pointing out that those were all very different situations. At that point, things get super bizarre again, as Archer references the widely debunked theory of "broken windows policing" as the reason he's calling. This makes absolutely no sense at all.

Archer: We all live in an ecosystem in which all these things hold together. Are you familiar with Felton Earls in broken windows at Harvard.

*pause*

Kohen: Uh... no, I'm not.

Archer: So you don't know anything about broken windows as a theory?

Kohen: (incredulous) The broken windows theory of policing?!?

Archer: Well, it's the idea that if you leave broken windows, it means you're going to let the festering of other things happen. You can't leave broken windows in a community without allowing the community to continue to believe it's appropriate to break windows and do other things. That's the point.

The conversation keeps going around in circles, and then Kohen correctly notes what this is: a violation of the First Amendment, in which a government official is clearly threatening and putting pressure on a constituent over his protected expression:

The suggestion seems to be that professors should watch what they say, whether they're in the classroom, or not in the classroom, professors should watch what they say. And one of the big concerns, as you know, with the First Amendment, is that chilling effect that this kind of discussion that we're having right now can have on speech.

Archer then responds in a way that suggests he has... a very, very confused understanding of the 1st Amendment.

I think there are limitations and problems created by both the left and the right around this issue. And I think that there should not be a chilling effect on your right to speak about ideas. But if you tell someone to go blow up a bomb, or you tell somebody to go vandalize, or you validate and say an inference that vandalism is a part of political discourse, by inference, you have to be careful about whether your are constraining yourself in the context of the 1st Amendment, in which... it ends when your fist hits my jaw, as you know.

We all know that this is a very complicated area. And we also know that it's important... It's foundational to this civilization without question. We couldn't survive without it. At the same time, the way we do it, also allows us to continue to do it. To be in this robust conversation with each other. So we're saying, and requesting that you look at your behavior and think about it as being an inference of supporting vandalism, which we don't think is appropriate political discourse.

So, just to be clear, if you're a government official telling someone else that clicking the "like" button (which courts have already said clearly are protected speech under the First Amendment) is "inappropriate public discourse," you are the one violating the First Amendment.

Either way, the call goes on and on and on, around and around for nearly an hour. Frankly, Kohen has the level of patience of a saint as the conversation continues and Archer's argument gets more and more ridiculous, and very carefully considers each and every wacky argument presented by Archer. Incredibly, Kohen tries, multiple times, to end the call, and Archer just keeps wanting it to go on, and pressing Kohen to somehow apologize for clicking the like button. Still, by the end the two end the call on a more friendly note and have a conversation about getting past political differences and improving government -- which is great. But... just the fact that the entire call came about over a like, and it involved a government official (1) complaining to multiple levels of bosses over a university professor and (2) further threatening to publicly shame that professor over his daring decision to "like" a silly joke on Facebook is insane.

Filed Under: 1st amendment, ari kohen, broken windows policing, fartenberry, free speech, jeff fortenberry, likes, politics, reyn archer, streisand effect, william reynolds archer iii

Swiss Court Sanctions Commenter For 'Liking' Defamatory Posts

from the click-it-and-ticket dept

In the era of "retweets ≠ endorsements," a ruling like this makes no sense. It makes no sense even without this caveat, but welcome to Switzerland's bizarre take on free speech.

A Swiss court has fined a man for “liking” defamatory comments on Facebook, in what is believed to be the first case of its kind.

According to a statement from the Zurich district court, the 45-year-old defendant accused an animal rights activist, Erwin Kessler, of racism and antisemitism and hit the “like” button under several comments from third parties about Kessler that were deemed inflammatory.

According to the court, you don't actually have to make defamatory statements to be fined for defamation. All you have to do is show your supposed support by clicking a button. Even if the defendant agreed with the inflammatory comments (information provided in the Guardian's article suggests Kessler has a distant racist past, which likely prompted the online dogpile), he did not make the statements himself. That people routinely use "like" buttons to flag stuff they want to keep track of and re-post things they don't agree with apparently wasn't considered. Or, if it was, it was quickly discarded.

The court said it did not matter that the comments had not originated from the defendant, whose name was not given. By clicking the like button, “the defendant clearly endorsed the unseemly content and made it his own,” the court statement said.

Just as surprising is the fact that several people ended up being fined in relation to this Facebook discussion. Except all the other fines were handed down in response to comments made. This defendant is the only one being punished for his "likes."

His lawyer raises a very good point:

“If the courts want to prosecute people for likes on Facebook, we could easily need to triple the number of judges in this country,” he said. “This could also obviously easily become an assault on the freedom of expression.”

The small mistake in this statement is there's no need to use the future tense. The assault on freedom of expression has already begun, where button clicks are treated as publication of defamatory statements.

Considering the court's extremely disturbing definition of defamatory speech, those fined in connection with this group thread perhaps picked the most inadvertently-hilarious hill to die on:

The comments were made in 2015 during heated discussions on a range of Facebook groups about which animal welfare groups should be permitted to take part in a vegan street festival, the Swiss daily Tages Anzeiger reported.

Somewhere in that sentence is a metaphor about progressives devouring themselves that begins with heated Facebook discussions and ends with someone overturning cars in a Whole Foods parking lot.

Beyond the entertaining mental image of PC'er-than-thou types devolving into defamatory mudslinging is the uncomfortable reality of the Swiss judicial system, where being little more than a bystander in a heated discussion turns you into a legally-culpable participant.

Filed Under: defamation, free speech, likes, social media, switzerland

Apartment Building Attempts To Coerce Tenants Into Crazy Social Media Policy Post-Lease

from the with-facebook-friends-like-these dept

We've done enough posts on apartment complex owners and property management companies to know that too many of them think that they can wage some kind of insane war on negative reviews that might be posted on social media and websites. To combat this, rather than simply addressing the concerns of their tenants, these misguided companies instead attempt to put social media and review policies as riders on the leases they offer. When that fails, some will either sue the critical parties, or will write in five-figure fines for posting anything that could possibly be deemed as critical.

But to see a really brazen attempt to shut up tenants, we can thank Dave Blevins for pointing us to the story of how one apartment owner tried to unilaterally force residents not only to keep quiet with any of their critiques online, but required them to "like" the apartment company on Facebook.

As KSL-TV reports, residents of an apartment building in Salt Lake City, Utah, say they found a curious piece of paper stuck to their doors. Headlined "Facebook Addendum," it had fascinating stipulations.

It insisted that tenants had five days to "friend" the City Park Apartments on Facebook or they'd be in breach of their lease. The fact that they'd already signed their lease perhaps months previously didn't seem to matter to the owners. Oh, and then there was the part about releasing the building owners to post pictures of the tenants or their visitors to, yes, the building's Facebook page.

You will also be traumatized into delirium when I tell you that another stipulation was that the tenants don't post anything negative on social media. This seems a strangely unbalanced "friendship."

So, not only a prohibition on negative reviews on social media, but also a requirement to give an endorsement of sorts instead. And all long after the lease was signed? Oh, this was just destined to go well for all involved.

Actually, the apartment building's Facebook page has a barely-there review score, with many folks dropping in to post negative reviews simply due to the draconian "policy" foisted upon its residents. I'd link to that particular Facebook page but, strangely, it has suddenly become unavailable for unknown reasons. As a result of all the backlash, the apartment building's law firm has helpfully fallen on the sword, indicating that it apparently didn't bother to review the notice it sent to tenants.

Perhaps the owners thought this was reasonable, modern behavior. A spokesman for the law offices of Kirk A. Cullimore, which represents the building owners, offered me this explanation:

As part of opening its pool and an anticipated pool party, City Park desired to provide some protection to its residents and its owners from usage of photos on its Facebook page from all community events, including the opening pool party. The "Facebook" addendum was provided to them to assist in that protection. That addendum went beyond the request and intent of City Park Apartments, and was not carefully reviewed to ensure that it met with their needs and requests. At no time was any resident in jeopardy of eviction or action from City Park for failure to sign the addendum or "friend" City Park Apartments. City Park has not implemented the addendum nor is it requiring its residents to execute it.

One wonders exactly how many billable hours were assigned for the task of creating an addendum outside of the lease agreement for tenants that the apartment complex apparently didn't want, which involved required Facebook likes and prohibited negative reviews, all in order to protect tenants from the horrors of the internet creeping into a simple pool party. Sounds like exactly the kind of thing that would either spur the choice to go with another legal team, or thank them for taking the heat via a heaping help of shielding bullshit.

Regardless, it would probably be best for the apartment to focus on making tenants happy rather than worrying about their social media reviews.

Filed Under: landlord, likes, non disparagement, real estate, salt lake city, social media
Companies: city park apartments, facebook

You Can't Be Fired For 'Liking' A Colleague Calling Your Bosses 'Assholes' On Facebook

from the so-now-you-know dept

A couple of years ago, we wrote about a rather troubling legal ruling in which a court declared that Facebook "likes" aren't a First Amendment protected expression. The ruling made little sense. It involved some employees of a local sheriff getting fired after "liking" the Facebook profile of the sheriff's opponent in the next election. Thankfully, that key part was overturned on appeal, with the 4th Circuit appeals court ruling that Facebook likes absolutely could be protected speech. Now, facing a somewhat similar issue, the National Labor Relations Board (NLRB) has similarly concluded that a Facebook like can be a form of "concerted protected activity" for which you cannot be fired.

The story involved a restaurant, Triple Play Sports, that apparently made an accounting error concerning the amount of taxes withheld in paychecks. Because of this, some of the restaurant's employees had to pay more taxes. A former employee, Jamie LaFrance, who this impacted had posted angrily to Facebook:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!

A current employee, Jillian Sanzone, added this helpful comment:

I owe too. Such an asshole.

Another current employee, Vincent Spinella, "liked" Sanzone's comment. Soon after, Sanzone and Spinella were fired. Triple Play argued that they were fired for violating the restaurant's "Internet/Blogging Policy," which is an actual thing, apparently. It's also noteworthy that a number of other Triple Play employees took part in the conversation, and were not fired. Triple Play actually argued that the fact that it kept the other employees on board showed that it wasn't targeting protected concerted action. However, the NLRB disagreed. It first found that the entire discussion was concerted activity (it helped that one of the other employees talked about raising the issue at a future meeting). Triple Play appealed and the NLRB still said it was protected activity. As Kevin Goldberg at the CommLawBlog summarizes:

Equally important here is the holding that, because Vinnie “liked” only Jamie’s original post and did not separately “like” any of the ensuing comments, his “Like” was an endorsement only of the original post and not the entire thread.

In other words, Vinnie’s “Like”, without anything more, was an expression of agreement with Jamie’s original, clearly non-defamatory, complaint. So a “Like” is clearly expression, at least in the eyes of this NLRB panel. And that interpretation can in turn be read to say that purely mechanical acts (e.g., clicking on the “Like” button) are “expression” under the NLRA. Based on that reasoning, I’d assume that, if you retweet something in a similar attempt to be part of a conversation or garner support for protected activity, you’d be protected as well.

The panel further noted that Triple Play's internet policy was itself a violation, since it effectively would ban protected concerted activity. This is not the first time that the NLRB has gotten involved in social media either. A few years back, we wrote about it issuing some warnings that it would not look kindly on firing people based on them speaking out on social networks. This ruling shows that it's living up to that promise.

Filed Under: concerted protected activity, facebook likes, free speech, likes, liking, nlra, nlrb
Companies: triple play sports

Judge Says You Don't 'Own' The Facebook 'Likes' On Your Page

from the good dept

In a world where people are always pushing the idea of "intellectual property" over just about everything, is it really any surprise when people assume all sorts of property-like rights in things that clearly shouldn't have any such thing? In a slightly bizarre lawsuit over the control of a Facebook fan page for the TV series The Game, the creator of the page, Stacey Mattocks, argued that BET effectively appropriated the approximately 6.78 million "likes" the fan page got. The details of exactly how this happened aren't worth getting into, but suffice it to say it was a contract negotiation gone wrong, as BET sought to bring the fan page under its official control. All that matters here is that among the other charges in the lawsuit, Mattocks claims that BET got Facebook to transfer those likes to its official page, which she alleged is a form of unlawful conversion.

However, the court has pretty soundly rejected this, noting that there's no property right in Facebook "likes" and thus no property to unlawfully "convert."

Based on the record, Mattocks cannot establish that she owns a property interestin the “likes” on the FB Page. As explained in Part I.A, “liking” a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content. At any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button. So if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them.... Given the tenuous relationship between “likes” on a Facebook Page and the creator of the Page, the “likes” cannot be converted in the same manner as goodwill or other intangible business interests.

Even if Mattocks could claim an ownership interest in the “likes” on the FB Page,she cannot demonstrate that BET’s migration request was unauthorized or wrongful. After Mattocks breached the Letter Agreement by limiting BET’s access to the Page, BET asked Facebook to migrate the “likes” to the other official Series Page. Facebook then reviewed the FB Page in accordance with its corporate-brand policies and determined that BET’s request was valid. More, as already explained, no substantial evidence shows that BET’s request violated any other legal duty to Mattocks.

Either way, it's nice to see a legal ruling that recognizes a lack of property rights in the likes other people give to your page. It would be even nicer if we stopped trying to declare everything a form of "property" when that makes no sense at all.

Filed Under: likes, ownership, property, stacey mattocks, the game
Companies: bet, facebook

State Dept. Spent $630,000 Buying Likes, But That Was Actually The Least Of Its Engagement Problem

from the and-honestly,-no-one-truly-'likes'-the-government-except-the-government dept

The release of a report from the Inspector General on the Bureau of Internal Information Programs (BIIP) brings with it the surprising news that the various agencies under its purview spent $630,000 pursuing Facebook "likes" in an attempt to increase their popularity. Normally, I would be setting the keyboard to "Mock Relentlessly," but this isn't so much a case of the government blowing tax dollars on stupid stuff as it is a case of using the wrong tool (bureaucracy) for the job (increasing engagement). That being said, it still means the money was ultimately wasted, but not in the "espresso machine in every cubicle" sort of way. (And there will probably be a little mocking.)

The Bureau of International Information Programs is supposed to be the leading edge for the State Department's public relations front, as John Hudson points out in his article for Foreign Policy.

The IG report stings -- especially because the Bureau of International Information and Programs is supposed to be Foggy Bottom's epicenter of online savvy. The bureau includes groovy-sounding divisions such as the Office of Innovative Engagement, which evangelizes on the "importance of using online engagement to drive offline, person-to-person activities and events." The bureau's stated mission is to be Foggy Bottom's "foreign-facing public diplomacy communications bureau" and supports its "growing social media community that numbers over 22 million followers."

An attempt to harness the power of social media through the bureaucratic interworking of 150 agencies is doomed from the start. It makes it very difficult to hone in on a clear strategy and avoid creating a disjointed, inconsistent mess. What makes it impossible is "leadership" that fails to meet even the laxest definition of the word. This is the first thing that greets readers of the report once they scroll past the introductory material, listed as the first item under "Key Judgements."

Bureau of International Information Programs (IIP) leadership failed to convey its strategic vision to staff members, despite formalized communications. Leadership created an atmosphere of secrecy, suspicion, and uncertainty.

"Secrecy, suspicion and uncertainty" are certainly hallmarks of government leadership. It's never a good thing, but it's certainly much worse when the intended aim is to present a unified and engaging social media presence.

According to the report, first flagged by the Diplopundit, overlap and coordination issues trouble the various bureau's 150 social media accounts. The report also mentions a "pervasive perception of cronyism" exacerbating its already "serious morale problem."

Cronyism is also a hallmark of government leadership, common enough that this perception will likely never go away. And again, 150 social media accounts, steered by dozens of agencies with no clear guidance, is a recipe for public affairs disaster. Added to the stultifying mix of secrecy, suspicion, uncertainty and a "perception" of cronyism is the crippling banality of bureaucracy, something that takes a straightforward job and turns it into a soul-deadening morass where the left hand doesn't know what the right hand's doing, but both have signed off on it -- in triplicate.

There is overlap and a lack of clarity in the functions and responsibilities between the Office of Web Engagement and the Office of Innovative Engagement. Staffing gaps in the latter, coupled with a 15-month vacancy in the director position, have left the office adrift and less able to play its role as the bureau's new technology pioneer.

An example of overlap is IIP's 20/100/100 program, which helps 20 embassies at a time raise their social media fan base by 100 percent in 100 days. At the conclusion of an embassy's participation in the program, its social media staff members frequently turn to the Office of Web Engagement rather than the Office of Innovative Engagement for advice. As the number of participating embassies rises with each round of the program, the advising function is shifting to the Office of Web Engagement, drawing staff members away from their primary duties.

The Inspector General does a marvelous job attempting to convey the relation and primary of two nearly identically named offices, but it's obvious the staff views the two as interchangeable. Logically, it would seem the Office of Web Engagement would cover, well, web engagement. The IG explains the distinction between the two, but it isn't so much an explanation as it is a statement of "This is for This." It also fails to clarify how an understaffed office that has run without a director for 15 months is supposed to handle the very important (to the BIIP, at least) social media functions.

The Office of Innovative Engagement is the proper place for this function for two reasons. First, its mandate is to keep up with the latest changes in social media rules and approaches. Second, it runs the Social Media Hub, the Department's primary repository of this information.

In summation, the Inspector General recommends "clarifying the roles, scope and responsibilities" of these two separate, but largely similar offices. It would seem a name change would go a long way towards clearing things up, or better yet, combining the two since everyone's used to going to the wrong place anyway. The staffing issue would be somewhat mitigated and there would actually be someone filling the director position.

As is to be expected from the preceding info, the Department's social media "strategy" seems to be the result of staffers being asked to hit targets (see the 20/100/100 program above) but given very little guidance on how to achieve these goals.

With the Department's use of social media comes strategic questions of the role, purpose, and limitations of the medium. A consensus is emerging that developing numbers of Facebook followers and Twitter fans may not lead automatically to target audience engagement...

The actual worth of a "Like" or a Twitter follower is still up for discussion, but you can go a long way towards negating the value of both by placing numbers ahead of engagement.

The bureau spent about $630,000 on the two campaigns and succeeded in increasing the fans of the English Facebook pages from about 100,000 to more than 2 million for each page. Advertising also helped increase interest in the foreign language pages; by March 2013, they ranged from 68,000 to more than 450,000 fans.

Much of this expense came in the form of paid post promotion, something Facebook makes almost mandatory if you're going to reach the maximum number of "fans." Then again, paying to push it to everyone's feed isn't a guarantee that it will be seen, much less engaged with. Paying for eyeballs also carries with it a faint hint of gaming the system, something both largely ineffective and somewhat morally suspect.

Many in the bureau criticize the advertising campaigns as "buying fans" who may have once clicked on an ad or "liked" a photo but have no real interest in the topic and have never engaged further...

IIP's four global thematic English-language Facebook pages had garnered more than 2.5 million fans each by mid-March 2013; the number actually engaging with each page was considerably smaller, with just over 2 percent "liking," sharing, or commenting on any item within the previous week. Engagement on each posting varied, and most of that interaction was in the form of "likes." Many postings had fewer than 100 comments or shares...

The Inspector notes that engagement is "a means, not an end." The true purpose of the State Departments social media presence is to "accomplish specific PD (Public Diplomacy) goals." This may be true, but if these offices are going to utilize social media, it's rather hard to achieve the "ends" without putting more thought and care into the "means." (Or, at the very least, some sort of unified front.)

Government entities face a much more uphill battle for hearts and minds than commercial entities, considering there's usually no end product to admire and no day-to-day presence in their lives. These entities also tend to view social media as a top-down structure from which they can dump press releases and photo ops onto the masses. This is not unlike government in general which, with the notable exception of campaign season, tends to operate in the same fashion.

If these departments are unwilling to engage on a level that actually feels like engagement to the public, chances are achieving "public diplomacy" goals via social media will be next to impossible. "Managing" this with a bureaucractic layers of redundancy only makes things worse. "Social media" isn't "regular media." It has little interest in regurgitating press releases and waiting around until government officials decide it's convenient to "address the media." The "macro" effort might benefit from committees and 68-point "Recommendations" directive, but the "micro" moves too quickly for that.

What the Inspector General found concerning the State Department and its use of social media is exactly what anyone should have expected to be discovered. The government is bureaucratic, something that meshes not at all with social media. Paying for "Likes" is the least of the State Department's social media problems. The largest problem is that what's detailed in this report is the natural state of many government entities and it's unlikely to be solved by rearranging the desks and issuing "clarifying" memos.

Filed Under: buying likes, engagement, likes, social media, state department, us government