Why Essena O’Neill’s Breakdown Matters To Parents Everywhere

essena oneill

With over a million fans and followers across social media, Australian teen Essena O’Neill was a bonafide social media star. She made money from YouTube videos, Instagram posts, as well as modeling and other freelance work she was able to secure due to her online popularity. But at the end of October she started deleting many of her over-2,000 photos from Instagram and re-captioning the remainder. She was exposing what she said was the “ugly truth” behind social media – that it’s all staged and often done on behalf of a brand.

While I do spend a great deal of my work talking about and educating people about the need for disclosure – and not just because it’s the law in the US, EU, and many other countries – this post isn’t about disclosure. I’ll discuss that issue on my other website. This post is about being a parent of an almost teen girl and how do I prevent this from happening to my child. Essena may now be 19 and have been “instafamous”, but she represents our kids. Our everyday kids who post on social media and watch, comment, fave, like, and ‘heart’ any number of social media accounts. We may follow our friends with their 65 other followers, and our kids do that too (although they and their friends have many more followers). However, the bulk of their impressions are coming from people who are social media “famous”. People like Ms. O’Neill.

The difficulty of parenting in the age of social media is that our kids are exposed to much more that we don’t see. Our parents may not have known exactly that we were looking at certain magazines or sneaking in to see movies or watching videos with our friends we knew we shouldn’t have been seeing. And while we may have wanted to believe they were clueless of what we were doing, they weren’t. The outlets for us to get information were the same as our parents. We weren’t bombarded with advertorial, product placement, sponsored content, and other types of subtle marketing that kids today must navigate. Which is why Essena O’Neill’s very public departure from social media is a bit of a wake-up call for parents.

Ms. O’Neill began on social media when she was 16. She quickly amassed 50,000 followers on Instagram posting photos of herself at the beach, wearing bikinis, showing herself ‘going to the gym’, etc. She is slender, beautiful, and lives in Queensland, Australia. Life was good. Then she found out brands would send her swimwear to ‘model’ and photograph for Instagram. Brands would pay her to do this. And she began down the road of using her social media platform for business. Instead of just being a 16-year old girl looking for people to validate her beauty, she became a shill for brands. She knew what she was doing – getting paid for posting photos that promoted a brand. But most of her followers – many, teen girls like herself – don’t.

So why does this matter to us? As parents, especially those of us with tween and teen girls, we work very hard to give our kids a solid foundation and healthy self-esteem. We spend hours making sure our kids aren’t bullied, or bullies. We read article after article about how to spot eating disorders in young girls. Our Facebook is filled with friends warning us about the latest predatory tricks of social media networks. We set up parental control, monitor texts, and ask a lot of questions.

But we don’t tell our kids that social media is another form of marketing and advertising. We likely assume they know that. We don’t tell our kids that those photos of their favorite celebrity are likely ads disguised as casual conversation. Because we don’t want to seem cynical. We’re not sure how to explain that the YouTuber they watch may be getting paid to talk about certain video games or makeup or clothing brands. How do you tell your kids that everything they read and see online may really be some sort of marketing? Even though they’re researching and doing their homework there.

We, the parents, don’t even know if what we’re seeing is an ad. It’s easy on TV, usually. It’s easy in magazines and newspapers, which our kids don’t read anyway. We know billboards are ads, and we inform our kids of this. They see advertisements in the program at sporting events, and from a very early age we’ve educated them on the difference between the ads and the content. But online? I know I’ve been sucked into reading what I thought was an article, only to realize at the end it was really just an ad. And, admittedly, sometimes it wasn’t until I was reading comments that I realized what I read may have been what is now being marketed as ‘native advertising’. If we’re not sure the social media post or video is really just an ad or product placement, how can we expect our kids to know?

And that’s why Essena O’Neill’s “departure” from social media matters. It matters because we’re talking about it. We’re talking about whether this is just a marketing ploy on her part or if she is sincere in her exposing ‘the ugly truth’ behind social media and those perfect posts. We’ll talk about it with our kids and find out their thoughts on what they believe is and is not real on social media. We’ll question more and demand disclosure. We’ll demand disclosure not because there’s something inherently bad about getting paid to work with a brand. We’ll demand disclosure because, just like with other forms of advertising, we have the right to know. And our kids have the right to know that what they see is just marketing and that they’re not expected to have that level of perfection in their lives.

Consumers and advertising watchdog groups were the advocates and impetus for the truth in advertising rules that apply to what some call traditional advertising – movies, television, newspapers, magazines, and direct mail. These same truth in advertising rules apply to social media. But until we’ve educated ourselves and our kids as to what this social media advertising and marketing actually looks like, just like we educated ourselves with traditional advertising, we deserve to know the truth, and so do our kids.

What do you think about the need for more transparency in social media and other emerging media platforms?


Why Is Sleep Depravation A Badge Of Honor

Sleep Deprivation

I’ve always been one of those people who went to bed late and got up early. Until I hit 40. I’d still stay up late, but getting up early no longer meant 5am. It started to creep later and later. Surviving on 4 or 5 hours of sleep now seems impossible. Well, unless caffeinated.

When I travel, it doesn’t matter the time zone, I try to adjust as quickly as possible. If I’m only staying a day or two I’ll just deal with the time difference and try not to keep reminding myself that I’m getting up at 3am or whatever time it is. It really doesn’t matter because the number of hours slept often doesn’t change.

As I get closer to 45 and spend more time getting to know people all over the world through social media, I’m seeing a terrible trend. Likely tied to the “FOMO” concept (that’s Fear of Missing Out for those of you not up on your acronyms), I am seeing more and more people talking about how they can survive on minimal sleep.

It’s as if the amount of time dedicated to sleep is a modern-day Name That Tune. “I can survive on 4 hours of sleep!” posts one person. Soon their feed is filled with their “friends” trying to outdo them and boasting about not sleeping for days. And those who chime in how they “need” their 8-hours of sleep are derided as slackers.

Studies show that healthy adults likely need 7-8 hours of sleep. Yes, this is an average and there are dozens of factors affecting this number. Some people need more, others may need less. But when we get into sleep deprivation, or sleep debt as it’s called by the experts, the need to establish bragging rights raises within us. When was the last time you heard people try to one up each other with sleeping beyond  8 hours?

In most conversations, there’s a sense of embarrassment for sleeping 8 hours or more. Even when a person is sick, they may not want to admit to sleeping too much. Why? For fear of being seen as lazy? Because they may be left out of something fun? I’m sure there is a body of psychology about this that basically comes down to the fact that we’ve been programmed over the last several decades that down time equals being a loser.

But do you want your surgeon operating on you while sleep deprived? How about the other parents in the pick up and drop-off line at school? Perhaps you’re OK with your kid’s teacher not getting enough sleep? Would you be fine with a sleep-deprived EMT coming to your house when you call 911?

In all these instances we’d be up in arms if anything were to go wrong because one of these people were sleep deprived. We’d be appalled if they boasted about doing their job half-assed because they really needed sleep but were “so busy” with social media, watching TV, to texting with friends. Yet we do this to ourselves and our friends, often with a sense of pride.

While studies exist about the negative effects sleep deprivation has on us, I don’t need to quote fancy studies or double-blind research, or empirical data from government agencies. We all know sleep deprivation makes us say and do things we wish we could take back. And I’m not even throwing alcohol into this mix. Totally sober but sleep deprived people. Saying stupid stuff on Facebook, not thinking twice when hitting “tweet” and posting insensitive comments on Twitter. We’ve seen it, possibly done it, and may have been on the receiving end of it.

What are some other negative effects?

1. Ever get the munchies when you’re tired? Just thinking you’ve been up so long without eating so you should eat, when the reality is your body’s pleasure response mechanism looking for some satisfaction.

2. Being called a firecracker is often a good thing. Not when it means you have a short fuse and you’re yelling at your kids, spouse, friends, or even total strangers.

3. Remember that college paper you turned in after being up for 36 hours straight? Not your best work, huh? Yet we don’t learn. We think staying up all night to land that big account, make a bigger splash online, or recreate that Pinterest-worthy whatever-it-is will get us our big break.

4. Driving while impaired isn’t just for drunken fools or drugged-up losers. It’s enough that people drive while doing other things. If they’re tired, they don’t even have to be doing anything else to cause an accident.

It’s not a badge of honor, this sleep deprivation. So why do we treat it that way? So many reasons we can come up with but what it likely comes down to is that we don’t want to miss out. No longer is our world on the same time zone. We have friends awake every minute of the day. There’s always someone to talk to.

Up until even a few years ago, this pressure-cooker of online engagement either didn’t exist or was so low we could just walk away. Now we don’t. We may be in bed, but rather than go to sleep we’re still trying to be present with people all over the world.

With age comes wisdom. Or so “they” say. And with wisdom comes the realization that when tired or sleep deprived we’re not at our best. We make mistakes. We have compromised judgements. And we begin to see ourselves in a hazy perspective that causes us to do or say things we otherwise wouldn’t.

We can post all we want about changing the world and making it a better place. But we can’t do those things when we’re not able to think straight.

Are you read to give up your badge and go to sleep?


Blog Law: Defamation and Social Media

Online Defamation

We’ve all heard the phrase “If you can’t say something nice, don’t say anything.” When it comes to social media and online content, though, its seems the phrase is actually “If you can’t say something nice, blog, tweet, facebook, or post it online.” While I shouldn’t be, I am surprised at what people post online. It’s as if there is no internal filter on some people. For others, Shakespeare has nothing on the drama they call life.

While it may not seem like many, as early as 2007 several hundred bloggers have been sued on a variety of legal theories, with defamation topping that list. And, as recent as 2011 a blogger was held liable for defamation and assessed $2.5 million in damages. Legal liability for what you post (and even comments made) on your blog is not a theoretical discussion. It is very real and is happening more often than you may imagine.

What is Defamation?

Defamation covers two types of communication, written (libel) and spoken (slander). Generally, defamation is a statement that is communicated to a third party and makes a claim, either expressly or implied to be factual, that injures another’s reputation or causes others not to associate with the person or business. Malicious intent is not generally required. And given that few bloggers would likely be classified as Public Figures within the very narrow definition, don’t rely on the “but they have to prove malice” defense.

With blogging, the main concern will be libel. Even if it’s not a written blog post but rather a vlog or podcast or some other type of internet-oriented medium, you’re likely going to be dealing with libel.

How does this apply to bloggers?

Your Own Statements

While 40 states do have Media Shield Laws which protect members of the media and media organizations, not all of those states include the internet in their Shield laws. As such, bloggers are not able to use those same protections when they write negative things about other people or organizations when those statements are implied to be or stated as factual when in-fact they are not.

We’re not talking about bloggers giving a review and sharing their opinion and their personal experiences which happen to be negative. Truth is always a defense to a defamation claim, but you have to have some proof that what you state is, in fact, true.

In addition, one of the key words in the definition requires that the statement be asserted as fact. This is why many bloggers and users of online forums, chats, and social networks and platforms are very clear to assert that their statements are merely their opinion.

For most bloggers, when it comes to their blog the risks of defamation are low. The topics covered don’t generally lend themselves to the assertion of allegedly false statements of fact nor do the comments and discussions move in that direction. However, with the US legal system as easy to use as it is there is a real possibility of being sued. Because being sued isn’t the same as being held responsible, someone can sue you just because they have a good faith belief that you’re defaming them. (Just ask Donald Trump.)

Comments On Your Blog

One of the great things about blogging is connecting with our readers. Engagement and comments are what we live for. In general, bloggers keep an eye on the comments. We need to filter out the junk, make sure people aren’t taking advantage of our generosity with the link juice, and try to keep the haters at bay. Some people moderate all their comments so they can control what goes out publicly on their blog. Others feel that moderation impedes conversation so they allow anyone to comment and it be available in real time.

Are bloggers really responsible for what a commenter says on their blog? As a lawyer, the answer is a resounding … MAYBE! In general, we’re not responsible for libelous statements made by others. So much so that Section 230 of the Communications Decency Act (47 USC 230) offers protections that apply to bloggers who permit comments on their sites. However, this won’t prevent someone from filing a suit against you or subpoenaing you and/or your blog records, but it will be an affirmative defense you can raise. And while you may not be liable, having to spend your time and money being involved in a lawsuit are often very high costs to standing your ground.

Where Can You Be Sued?

I’ve been asked this a few times. And while the answer is somewhat complicated, at the same time it’s very easy. The short answer is Everywhere! It is the world wide web, afterall. And that first word, world, is quite broad. Chances are though, that if you were sued for defamation you’d likely be sued in the US in some state other than where you live. And that creates lots of problems.

Jurisdiction, the ability of a court to hear a case involving you and your actions, can be pretty tricky. For example, criminal courts can only hear cases about alleged violations of criminal laws. It can’t rule on divorce or probate or contract disputes. Civil courts, though, hear cases about civil matters. That’s called subject-matter jurisdiction.

With any court, though, they also have to have authority to hear a case involving you specifically. Known as personal jurisdiction, the state has to have some relationship to the parties or the matter to haul you into their system. You can’t just file a lawsuit against someone anywhere in the US. The parties involved have to have some relationship with the state to be subject to their court system. Even in Federal Court, the courts have special rules about which court you can use.

If you blog in California and the person or company that alleges you have defamed them is in Florida, where do they sue? Besides looking at the question of state or federal court (which I won’t discuss), should you have to go to Florida because it’s convenient for them? Why shouldn’t they sue you in California? Afterall, you are there and that’s where the alleged defamation occurred. Right?

As recently as 2010, a Washington State blogger was sued in Florida for defamation. The Washington blogger didn’t think she should have to go to Florida to defend herself because she had nothing to do with the state. Unfortunately, the court disagreed. The rule that came out of that case is that if your posts are accessible in Florida then you’re subject to Florida courts.

That’s not a US Supreme Court ruling and therefore not the ultimate law of the land. However, as precedent it is very strong. As such, just understand that even if you’re sitting in your jammies in middle of now where USA you may need to haul yourself into any court in the land to defend yourself for claims relating to your blog.

Comments, Discussions and Updates Made to Social Networks or Platforms

You may have heard that rocker (and wife to the late Curt Cobain) Courtney Love was sued over an allegedly defamatory tweet. In less than 140 characters, Ms. Love made allegations against a former clothing designer she had been working with. And while the case never went to trial so we won’t know if there is any legal basis, Ms. Love settled the defamation suit. However, Ms. Love didn’t think she needed any type of internal filter when using Twitter after that experience and later in that same year she was sued again for defamation, this time by her former lawyer.

While most people aren’t using Twitter or other social platforms to make allegedly defamatory statements, the increase in what are believed to be private discussions within social media and social networks are beginning to pose concerns. A defamatory statement does not require publication to any specific number of people. In fact, all that is required is that such a statement is made to a third party. One person! A defamatory statement sent by Direct Message on Twitter, the chat feature in Facebook, instant message or even text is all that’s needed. You may wonder how the person/company/business being defamed would learn about it, but really do you.

7 Important Takeaways about Defamation (specifically, Libel)

1. You only have to publish your statement to ONE person! – Contrary to what many believe, you don’t need to tell millions of people to be held liable for defamation. With the ease of screen capping or forwarding a text, what you say to one person can easily get to the allegedly defamed person. As for those private conversations on DM, IM, chat or text, they’re fair game. As are anything said in those “secret groups” on various social media platforms.

2. You can likely be sued anywhere in the US – Anything published on the interent will likely expose you to jurisdiction in courts across the country. Be prepared. Even if what you did say turns out not to be defamatory, it doesn’t prevent you from being hauled in to court in another state to prove it.

3. You may be sued for what other people say on your blog – As a blog administrator, you have a great deal of control over comments made on your blog. And while Section 230 of the Communications Decency Act may protect your from liability, it won’t protect you from being sued and having to defend yourself. Sure you’ll be able to raise a valid defense but you’re still being sued and it sucks.

4. What you write is asserted as fact either expressly or impliedly – Defamation does not apply when the statements are your own opinion. It’s when asserting things as fact that you can get in to trouble. If you’re ranting about someone (or something, or a company) and it’s just your opinion then make sure it’s clear that it’s your opinion. If you’re stating facts be clear about that as well. If you know for a fact so-and-so was smoking weed and you can back it up with either first hand knowledge or a reliable source then write about it. But if you just think so-and-so is a pothead don’t risk it with hyperbole and grandstanding. But remember you can’t shield your source and expect the court to just wave you past go to collect your $200.

5. Bloggers often aren’t treated the same as traditional media – Even for those bloggers who take a more journalistic approach to their craft, many courts still aren’t ready to extend traditional media protections to a blogger. While some states have attempted to close this gap on how bloggers are classified, most have not. But, like traditional media, bloggers should check, double-check, and possibly triple-check any sources they rely on for their information.

6. Be careful with photos and images you use – The saying that a picture is worth a thousand words can be a detriment to you if you use a photo that implies a fact that is untrue. Stay away from juxtaposing images with stories to imply something that isn’t there.

7. If you are sued, find a lawyer in your city that specializes in defamation – Don’t immediately take down the post or delete the tweet. You can’t unring the bell, but you can find out how to best defend yourself. If not handled appropriately, removing the allegedly offending piece can make the problem bigger.

While I mention this in the context of a blogger, really it’s applicable to any type of online professional or entrepreneur that publishes content on the web. While the adage is that “if you can’t say something nice, don’t say anything at all”, we need honesty and authenticity. Others may not like what you have to say about them or their product, but the truth of the matter is that we’re all allowed our opinion and the ability to tell the truth.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.


Who Needs a Pen Pal When You Have Twitter?

Globe in Hands

About 35 years ago, (yes, I am that old) I was a young girl eagerly awaiting a letter from a show called Big Blue Marble telling me all the details of my pen pal. I would be assigned another young girl to write to and become friends with. And so began what is now my most enduring relationship other than the one I have with my brother or my grandma. At 6 I’m sure my letters were lame. But I waited so eagerly for my letter from R. R lived in a suburb of Detroit and she was just like me in so many ways. We wrote letter after letter.

For years our only communication was in letters, cards, boxes of baked goodies at the holidays and special little gifts. I honestly don’t remember the first time I ever spoke to her on the phone. I’m sure it wasn’t until I was 10 or 11. And when we did finally talk on the phone it wasn’t very long. Back then long distance calls were very expensive. And because we didn’t have much money, long distance calls were a luxury we couldn’t afford. But I never minded. And neither did she.

But now, who needs letters and phone calls and patiently waiting weeks to hear back from someone you really don’t know? Today, I can chat with R whenever I want. I have instant messenger, texting, Facebook, Facebook chat, Google Chat and a whole host of ways to be in touch. But that’s because I know her. Well.

As I’ve spent the last year connecting and engaging with Twitter, I’ve come to realize that it is just the modern day equivalent of the pen pal. Without the need for a pen. Or waiting.

I’ve met, talked with, laughed with, bantered and generally engaged with hundreds of people. Without regard to who they were. It’s hard to really size someone up on Twitter except for their basic bio and often a link to their website. Usually, though, it’s not all that much more information than I had 30-some years ago about R. But you go with it.

And people do become friends. My friend Diana (@AdamsConsulting) is a tech superstar. Earlier this week she wrote about how she became best friends with someone she met on Twitter. It was her story that got me thinking about how technology has brought people together just like a Saturday morning show brought me and R together. That as long as there is a common thread to connect people, strangers can form lasting relationships.

There aren’t many ways though. You can’t really do that on Facebook. There you connect with ‘friends’ or people you know or people who know someone you both mutually know. It’s not about connecting strangers. That’s what Twitter does best. It connects people who otherwise may not have met in real life. Not because we don’t have common ground, but because we’re very dispersed. I know people all over the world because of Twitter. I talk to them, often in real time, about topics ranging from A to Z.

There is so much power in the written word. Add a heavy dose of tech to it and make the exchange real time and relationships that may have taken years to solidify become rock solid exponentially faster. They’re not superficial. These are ‘I will give you my kidney’ type of relationships. And they’re forming every day because people are putting themselves out there and being themselves and making friends in a new way.

The interesting part is that if you’re not feeling the connection, the investment time is shortened. And, because there are multiple conversations happening at once there is an opportunity to learn a lot about other people and their views, hot buttons, passions, character and ethics very quickly. In some ways it’s harder to hide the skeletons now.

The only drawback I see is that forming these relationship doesn’t happen as early as it did for me and R. And it’s because we’ve been friends since early childhood that she knows everything about my past. She lived my life with me and shared all the milestones throughout my youth. There’s something powerful about that.

For adults though, we often lose sight of the importance of connectivity. It’s a lot of work to find people you really want to be friends with because of who they are not solely because they are close in proximity and therefore convenient. Twitter makes it possible to hold that big blue marble in our hands. The world becomes smaller.

Pen and paper are wonderful for connecting. But as an adult it’s impractical to send off random letters to strangers. Twitter, though, has come up with a way that in 140 characters you can form strong and significant relationships with people who would otherwise be strangers.

I’m sure you’ve made great friends online with people you otherwise may not have met. Isn’t that just phenomenal? If we aren’t connected on Twitter or Facebook, please click the little buttons at the top. And comment or send me an email so I can make sure I’m following you back on Twitter.