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Affliction and Social Media

Kids, Popular Culture, Social Media (and The Law)

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I spent a significant amount of time over the past several years closely monitoring the epic Barbie v. Bratz battle in California.  Much of the case, as many reporters have noted, centered on efforts by toy companies to recapture the highly prized demographic of girls between the ages of 9 and 12.   Once upon a time, these girls were major doll consumers – I vividly remember girl classmates talking about Barbies in 5th (and maybe even 6th) grade.  Of course, my youth was during the Pleistoceine era, so my memory may not be perfect.

Today things have changed, and doll play has moved younger and younger down the age chain — a fashion doll that would have once been the province of a 10 year old is now the plaything of a six year old.  The industry even has a catchy name for this phenomenon: GPOY (girls playing older, younger).   By the time girls are 12, in many cases they have largely abandoned toys altogether — a problematic development, as you might imagine, for companies that make toys.

The Official Son of Legally Social is 13, so I get a chance to observe this demographic from up close on a regular basis.   And with this perspective, it seems to me pretty obvious how — and why — this has happened over the past two decades.   But more importantly, the transformation we see in kids today holds a lesson for all of us who think about social media, and what we can expect as the future hurtles towards us at alarming speed.

But first some history: Kids are self-evidently creatures of popular culture, but this has not always been the case.  In fact, popular culture is a fairly new phenomenon itself.  Before the media age, the notion of a non-localized popular culture was simply non-existent.  This is critical to keep in mind, because the rapid changes of the past few years are completely consistent with the changes that have taken place over the past 100 years in our society at large, and the implications for how we address the legal concerns that arise in this context are dramatic.

Once upon a time, speech was inevitably a limited phenomena.  Literacy was fairly restricted, and the only form of communication in most scenarios was oral.  This led to social silos (fairly limited social groupings that had interests in common, geographically isolated).  As Gregory Clark discussed in his epic A Farewell To Alms, until the beginning of the 19th century most of the world, including most of the Western world, lived in fashion no different than our Stone Age ancestors.  This was not that long ago — in fact, the grandson of President John Tyler (born in 1790) is still very much alive today.

So the media age, as we understand it, is in human terms something still in its infancy.  We have gone from letterpress pamphleteers to Facebook in a handful of generations.  My grandparents were the first generation to experience radio, and my parents the first to experience television.  But while this is startling to adults who remember the 8 track tape, this is even more dramatic in its impact on kids, and how our culture and its laws will develop over the next several years.

Kids historically had little social autonomy.  The classic film A Christmas Story vividly describes a world where kids talked to their neighborhood friends, and the grapevine of misinformation was an endless game of operator.  Kids could receive some information, but could not broadcast it on their own.  They had no freedom to develop an aesthetic, because they had no freedom to do anything in particular, because their world was limited, and they didn’t have access to anything other than advertisements in the newspaper and the holiday window at Higbee’s department store.

It goes without saying that today’s world is saturated with popular culture.  Every square inch of your life is filled with commercial advertisements, music, hundreds of channels of content, millions of websites offering fellowship based on the narrowest or broadest of criteria, and mobile devices that can connect you at a moments notice to any piece of information imaginable.  If you are an adult, and have well developed filters to sift through this deluge of content, it’s still difficult to assimilate:  There are privacy settings on every platform.  There are restrictions on the sharing of content in some contexts, but not others.  Some things on the Internet appear to be freely copied, while others will get you fined.  The same water-cooler conversations that took place for decades may now get you sued for defamation, or fired.  All of the legal restrictions on the flow of information that have always existed but were irrelevant to individuals now apply to you.

But imagine if you are a kid.  Now everything becomes “old” in record time, as the newest “new” thing comes into your vision only days (hours?) after your last experience.  Something that may have been enjoyable for years in a prior generation is now replaced by a yearning for the next experience almost immediately.  You become jaded sooner, become a teenager sooner, become a consumer sooner.  You have the ability to communicate your thoughts and desires to the world, not just to your friends.  You have a mobile device on you at all times, and every thought that enters your mind can now be broadcast with or without the application of judgment you may or may not have had a chance to develop.  One teenaged daughter of a friend was recently offended that her parents might want to look at her tumblr — “my tumblr is for me” she said, even though it was visible to millions of people and had thousands of followers.

The law doesn’t think about any of this.  Oh, sure, the FTC just revised its approach to the Children’s Online Privacy Protection Act (COPPA), to take into account the fact that social media and geolocation exist, but that hardly matters.  The social context for social media and mobile communication is moving so much faster than the law can possibly adapt, and kids are the bleeding edge of that transformation.  They are not only playing older at younger ages, they don’t even realize that they are playing anymore, using adult tools.

So what does this all mean?  It means that your social media policy is probably out of date, even if you just put it together last year, because having a social media policy (and a privacy policy, and terms of use) is no longer a static requirement.  You need to be aware of what is going on all the time, and think about whether your approach to the legal risks is correct, sufficient, or even relevant.  Having policies is now a process that continues on, forever, mutating your approach as the technology and the social contract are altered in real time.  The intellectual property that you never thought about may be the only form of recognition you have in this new world of branded media, and you may want to consider how and whether you protect yourself.  In other words, you need to audit yourself, and your approach, to electronic communication, all the time, as a reflex.

So be systematic, and think about these issues now before you have a problem.  You can’t be reactive in a world that moves too fast for adults.