Op-Ed: Extremely tricky unique court case for Meta, Facebook might clarify online legal advertising issues

Facebook parent Meta says its was told by Russian authorities to stop the work of its fact-checkers – Copyright AFP Charly TRIBALLEAU

The Australian Competition and Consumer Commission (ACCC) has thrown a palette of legal bricks through one of the more complex legal issues on social media. The ACCC alleges that Meta engaged in “false, misleading or deceptive conduct by publishing scam advertisements”.

(These ads include a secondary issue; the use of celebrity images on scam ads. That’s been previously covered. This article is intended to focus on the macro issues affecting social media. There’s a civil case filed by Australian billionaire Andrew Forrest which includes allegations of money laundering, and related problems.)  

These are all serious enough legal problems without the use of the word “scam”. The ads related to cryptocurrency scams, add some more depth and difficulty.

If you’re thinking this case is the entire bandwidth of grim, expensive legal issues for social media advertising, you’re right. It’s just that this case is far more complex than it looks. “False, misleading, and deceptive conduct” is pretty much the entire spectrum of advertising law Thou Shalt Nots.

False advertising is of course illegal. Misleading and deceptive conduct are also illegal with added upside on the subject of how publishing online ads works.

Then there’s the scams issue. Online scams are at plague levels worldwide. This case plugs in directly into just about all aspects of that big messy situation. This is where “false, misleading, and deceptive conduct” turns potentially criminal.

There’s, therefore, a lot at stake for advertisers, social media, and the public. ACCC is doing its job as a regulator, targeting a unique combination of major online advertising issues in extraordinary depth. This is effectively a test case. ACCC’s public statement regarding the case is interesting reading and includes some consumer advice.

Meta/Facebook’s problems

One of the biggest issues for Facebook is advertising. This is Facebook’s core revenue base. It’s tricky enough without scams, and decidedly thankless as an advertising environment.

Online advertising is a farce. It’s burdened with payment systems, absurd algorithms, and the rest of the dung cart of techno-self-hyped garbage that doesn’t work. It rarely reaches audiences. Facebook is arguably a bit better than most, because the users are voluntary platform-dwellers.

These users might actually be interested in products and services. They’re online on a continuous basis. Ads aren’t directly search-related. Facebook is a more efficient form of “passive SEO” in some ways.

… This is why this case is so important. It strikes directly at Facebook’s major legal and revenue issues. It directly affects the user base and user legal issues.

It shouldn’t be assumed that Facebook is necessarily happy with the way things work. Facebook is a flak magnet for criticism on so many issues related to its algorithms, ads, and scam issues.

Much of the criticism is unrealistic and staggeringly myopic in legal terms. This is social media. Social issues naturally impact the world’s biggest social media platform. Facebook didn’t invent the social environment; it reflects it, all too well, sometimes. It’s often like blaming the phone company for a crank call, but not the caller.

Can Facebook vet all ads for content issues? Probably not. It’d be horrendously expensive. Online advertising isn’t usually done under oath, either. How do you fight crime with a social media platform? You can try, sure, but what’s possible has to be considered.

Ironically, the case might also give Facebook some useful legal options, win, lose, or draw. Facebook is not a law enforcement agency. Its best and by far simplest option is to distance itself from legally dubious content with its Terms of Use. Any content which is deemed unacceptable can simply be refused or trashed on that basis. No comeback.  

The main difference here is that managing ads can be done at the back end, not the live content end. Ads could be refused on any given basis, and terms reflecting Facebook’s absolute final say in what’s published and what’s not are unarguable.

Global ramifications

The truth is that the law follows its own logic, right or wrong. This case will create either ripples or waves throughout the global regulatory and civil legal environment. Even the huge regulatory coma in the US could benefit from some findings in multiple areas.

The regulatory environment needs direction. Online law is still way too slow and well behind most of the common legal issues. This case could be a nice catchall reference for a lot of online legal problems.  

Civil law is far more volatile, with highly motivated people’s cases creating very subjective, limited legal precedents on a routine basis. This is unavoidable and sometimes beneficial, but a wider frame of legal reference would definitely clarify some issues. (This is similar to “So you’ve been hit by an underage drunk driving a train in a supermarket” in civil law terms.)

The world needs a clear legal framework to manage the online scams, civil issues, and above all the liabilities of social media for commercial content. Nobody’s likely to celebrate this court case, but maybe you should. This could clean up a lot of content and conduct which is long overdue for eradication.

Facebook could shut down a huge amount of possible legal trouble for itself and lose problem advertisers as well. The wider social media environment could benefit a lot from a safer and simpler online advertising environment.

It can be a win-win, done properly. This is definitely not the time or place for “trial by media”. The legal issues must be considered and done well. With a bit of luck, the world may benefit hugely from this case.

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Disclaimer:

The opinions expressed in this Op-Ed are those of the author. They do not purport to reflect the opinions or views of the Digital Journal or its members.