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Unfollowed: Examining the Property Rights of Social Media

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UNFOLLOWED: EXAMINING THE PROPERTY RIGHTS OF SOCIAL MEDIA INFLUENCE IN DIVORCE PROCEEDINGS Hamilton Leiser1 I. SOCIAL MEDIA’S GLOBAL REACH Imagine a picture of an egg being worth ten million dollars. At least one digital marketing agency is estimating exactly that.2 In January 2019, a then-anonymous person created an account on Instagram with a single goal: make a photo of an egg the most liked post on Instagram.3 Within days, the post passed the previously most-liked post on Instagram, which was a picture of Kylie Jenner’s infant daughter.4 As of February 3, 2019, the egg post has over fifty-two million likes, with the account having over ten million followers.5 The account began to post pictures of the egg with cracks, eventually revealing a video promoting mental health.6 This account’s influence as a 1. Hamilton Leiser is a 2020 candidate for Juris Doctor from SMU Dedman School of Law. He received a Bachelor of Business Administration from the University of Texas at Austin in 2016. Hamilton would like to thank Professor Weaver for her help and guidance on this Comment. 2. See Taylor Lorenz, The World-Record Instagram Egg Is Going to Make Someone Very Rich, THE ATLANTIC (Jan. 31, 2019), https://www.theatlantic.com/technology/archive/2019/01/race- monetize-world-record-instagram-egg/581686/. 3. See Jonah Engel Bromwich & Sapna Maheshwari, Meet the Creator of the Egg that Broke Instagram, N.Y. TIMES (Feb. 3, 2019), https://www.nytimes.com/2019/02/03/style/world-record- egg-instagram.html. 4. See id. 5. See id. 6. See Ben Tobin, We Finally Know What That Mysterious Egg Instagram Account Is All About: Mental Health, USA TODAY (Feb. 4, 2019), https://www.usatoday.com/story/tech/2019/02/03/world-record-egg-instagram-mental-health- awareness-campaign/2765315002/. result of those numbers of likes and followers makes it worth $10 million.7 As social media spreads throughout all facets of society, the impact of its influence will begin to raise legal questions regarding the nature of social media influence. One such question arises in the context of divorce proceedings. How should a court address a spouse’s social media influence when deciding how to divide property in an equitable manner? Should that social media influence even be considered property? This Comment addresses the issue of valuing social media influence, and how to divide that value in a divorce in Texas. While no court has directly addressed this issue, this Comment presents various ways that social media influence has been valued and applies those valuation principles to marital property and divorce proceedings in Texas. Part II defines social media influence and how it operates. Part III discusses social media influence as property and how to value social media influence. Finally, Part IV addresses social media influence in relation to marriage property rights and how to divide the value of social media influence in a divorce proceeding. II. SOCIAL MEDIA INFLUENCE A. What Is Social Media Influence? Social media presence consumes modern society. A recent study found that over seventy percent of adults use at least one social media platform.8 In one fictional example of the power social media can have, characters from the show Black Mirror live in a society dictated by a social 7. See Lorenz, supra note 2. 8. Social Media Fact Sheet, PEW RES. CTR. (June 12, 2019), http://www.pewinternet.org/fact- sheet/social-media/. rating system, much like Uber’s driver rating system.9 In another Black Mirror episode, society gets to choose who will die based on who is trending using a specific hashtag on Twitter.10 However, unbeknownst to those who tweeted using the specific hashtag, everyone who used that hashtag ended up dying as well.11 While the show Black Mirror has presented extreme examples of the control social media has in our lives, it does recognize how big of a role social media plays in modern society.12 For example, the leading social media platform, Facebook, has over 2.2 billion active users.13 It is no surprise that individuals would seek to profit using social media.14 Social media influencers are individuals who use social media platforms to influence their followers or fans in making certain decisions.15 While some high-profile celebrities act as social media influencers, many individuals do not have prior celebrity status before becoming a social 9. See Erin Brodwin, What Psychology Actually Says About the Tragically Social-Media Obsessed Society in ‘Black Mirror,’ BUS. INSIDER (Oct. 26, 2016), https://www.businessinsider.com/psychology-black-mirror-nosedive-social-media-2016-10. 10. See Lizzie Plaugic, Black Mirror’s Hated in the Nation Creates a World Where Everyone is at Fault, THE VERGE (Oct. 28, 2016), https://www.theverge.com/2016/10/28/13440972/black- mirror-season-3-episode-6-hated-in-the-nation-recap. 11. See Emily Todd VanDerWerff, Black Mirror Season 3, Episode 6: “Hated in the Nation” Has One True Villain—Creator Charlie Brooker. (Also, Bees.), VOX (Oct. 30, 2016), https://www.vox.com/culture/2016/10/21/13341528/black-mirror-episode-6-hated-in-the-nation- recap-review. 12. See Brodwin, supra note 9. 13. See Most Popular Social Networks Worldwide as of January 2019, STATISTA, (Sept. 6, 2019), https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/. 14. See What is an Influencer?, INFLUENCER MARKETING HUB, https://influencermarketinghub.com/what-is-an-influencer/ (last visited Feb. 17, 2019). 15. See id. media influencer.16 These influencers are generally individuals who have shown expertise and knowledge in a certain area.17 The influencers use that expertise to guide their audience in making decisions, relying on trust from their audience that the influencer knows what they are doing.18 Companies and advertising firms reach out to social media influencers to promote their brands and products.19 These firms are willing to pay thousands of dollars for a single promotion.20 Following scandals such as the infamous Fyre Festival where social media influencers promoted the failed festival without revealing that they were being paid for their promotions, social media users called out these influencers for deceiving them.21 The Federal Trade Commission (FTC) sent out reminders to social media influencers of the rules related to advertisements and paid promotions.22 The FTC explained that any influencer paid to promote a product for a sponsor or brand must clearly state that his promotion is an advertisement.23 However, the FTC noted that if an individual simply buys a product himself and chooses to promote that product, that individual 16. See id. 17. See id. 18. See id. 19. See Paris Martineau, Inside the Pricey War to Influence Your Instagram Feed, WIRED (Nov. 18, 2018), https://www.wired.com/story/pricey-war-influence-your-instagram-feed/. 20. See id. 21. See Zoe Kleinman, Has Fyre Festival Burned Influencers?, BBC NEWS (Jan. 22, 2019), https://www.bbc.com/news/46945662. 22. See id. 23. See The FTC’s Endorsement Guides: What People Are Asking, FED. TRADE COMM’N (Sept. 2017), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what- people-are-asking. does not need to disclose his promotion as an advertisement.24 The FTC provided a guideline with many hypotheticals to help clarify the rules for social media users.25 This enforcement decision to apply these rules against social media influencers was a result of traditional media advertisement companies calling out these ads on social media as misleading because the influencers were not admitting that they were being paid to promote products.26 While celebrity status and social media influence are quite similar, this Comment distinguishes the two, focusing on social media influence. Celebrity status focuses on the influence that a person himself may have, whereas social media influence focuses on the value of the influence a person has through his social media account.27 However, as social media influence has rarely been addressed by the courts, this Comment will address celebrity status as analogous to social media influence. i. Platforms While the platforms are collectively grouped as social media, each platform for social media has unique characteristics that differ in usage. Likewise, the number of social media 24. See id. 25. See id. 26. See FTC Staff Reminds Influencers and Brands to Clearly Disclose Relationship, FED. TRADE COMM’N (Apr. 19, 2017), https://www.ftc.gov/news-events/press-releases/2017/04/ftc-staff- reminds-influencers-brands-clearly-disclose. 27. See What is an Influencer?, supra note 14. platforms ranges from LinkedIn’s business profiles to Taylor Swift’s own social media platform called “The Swift Life.”28 The following are some of the most used social media platforms. Facebook The majority of users use Facebook as a personal page where an individual creates a profile with information about him or herself.29 The user can upload photos and videos, post updates, and engage with other users.30 Facebook users have a Newsfeed that shows the activity of other users with whom the user is Facebook friends with or pages that the user has liked.31 Approximately 69% of the U.S. adult population uses Facebook, with 74% of those users saying they log on to Facebook daily.32 Facebook also allows individuals or organizations to create a “Page” where that individual or organization can promote nearly anything.33 Bands will use Pages to provide updates, as well as create Events to which users can virtually RSVP.34 Companies create Pages to promote 28. See Beatrice Hazlehurst, Taylor Swift’s App ‘The Swift Life’ is Your New Social Network Destination, PAPER MAGAZINE (Dec.
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