"INFLUENCING" THE LEGISLATURE: THE NEED FOR LEGISLATION TARGETING ONLINE SEXUAL HARASSMENT OF SOCIAL MEDIA INFLUENCERS.

• Author: Adams, Samantha M.

INTRODUCTION

More than 4.5 billion people use the internet, and 3.8 billion of these users live comfortably on social media. (1) Social media's quick, cost-effective flow of information and unlimited reach are ideal for individuals looking to, for example, reconnect with a childhood best friend with whom they have lost touch or instantaneously share opinions and viewpoints with others from around the globe. Companies large and small have revolutionized social media--and specifically its users--into an effective tool to market their brands. Though effective, these users, utilized by companies for profit, are often subject to rampant sexual harassment while conducting their work, with neither federal nor state antidiscrimination laws available to protect these users while they make their living. (2)

A social media influencer (Influencer) is a social media user who has "the power to affect the buying habits or quantifiable actions of others by uploading some form of original--often sponsored--content to social media platforms like Instagram, YouTube, [and] Snapchat," as well as others. (3) Social media influencer marketing (Influencer Marketing) is "the act of a marketer identifying and engaging influences to share information with influencees in pursuit of a business goal." (4) The Influencer Marketing industry was projected to generate around $10 billion by 2020. (5) Successful Influencer Marketing depends on brands paying the right Influencers to market their products. (6) Influencers' presence on social media is ubiquitous and effective, with roughly 15.7% of Instagram profiles alone dominated by just one subset of Influencers called "micro-influencers," (7) or Influencers who have between 10,000 and 100,000 social media followers, (8) and with 88% of consumers reported to have been "inspired to purchase based on what they saw from an influencer." (9) Unsurprisingly, the glamorous job of an Influencer is coveted and desired among millennials and Generation Z. (10)

Though difficult to tell from Influencers' frequent smiling photos or videos full of high-end products they were sent and paid by brands to promote, a quick glance at the comment section of an Influencer's social media account reveals that, by way of their job, Influencers are the target of severe, public, and often sexually charged online harassment from other social media users. (11) Most social media platforms allow users to delete comments left on their posts; however, since Influences' engagement with users--both negative and positive--and the attention their posts receive are factors that brands consider when deciding which Influences to work with, "reading such harassment, and making the choice to not delete it, simply becomes 'part of the job.'" (12) The daily, yet unavoidable, exposure to this harassment can lead to detrimental physical and mental effects for the Influencer-victim. (13)

In contrast to traditional marketing departments, Influences are typically classified by the sponsoring brands as independent contractors, (14) or "self-employed workers who are brought into an organization to provide specific skills." (15) This means that, unlike standard employees, Influencer-independent contractors lack vital workplace protections under both federal and (typically) state employment laws. (16) In particular, Influences classified as independent contractors are not protected under Title VII of the Civil Rights Act (Title VII), (17) also known as "the central federal antidiscrimination law," (18) nor the antidiscrimination laws of several states, often leaving them without a remedy against the pervasive sexual harassment they receive while doing their job. (19)

It is clear that "[technology is transforming modern employment as new, disruptive ways of conducting business are redefining how the employer-employee relationship functions." (20) Yet, in the United States, laws guarding against sexual harassment have not evolved in tandem with these new work arrangements. Specifically, Influencer Marketing has created a new job for many Americans that falls outside of current antidiscrimination laws. Title VII was enacted, in part, because particular segments of the workforce were consistently the subject of workplace discrimination. (21) Influences are consistently the subject of online sexual harassment while performing their jobs, yet they lack any similar protection merely because they are typically classified as independent contractors. However, even if some Influencer-brand relationships could properly be classified as an employee-employer relationship, an Influencer would likely not be able to recover under Title VII because of the virtual nature of the harassment, uncertainty surrounding whether social media platforms could be considered a "workplace," and the brand-employer's potential lack of control over the non-employee social media users that perpetrate harassment against Influencers. (22)

This Note proposes that legislative action specifically targeting Influencers and online sexual harassment must be taken to protect this segment of the modern workforce. New legislation, narrowly targeted at online sexual harassment against Influencers, should hold brands accountable for the harassment against the Influencers whose services they profit off of, regardless of whether the Influencer is an employee or an independent contractor.

Part I of this Note provides background on social media influencing as a job, discussing the Influencer-brand relationship, the benefits of Influencer Marketing for a brand, and the financial incentives of Influencer Marketing for Influencers. Part I then goes on to expose the inevitable downside to the glamorous job of influencing: online sexual harassment. (23) Next, Part II discusses the laws in place that attempt to address general incidents of online harassment and highlights their failure to provide victims with relief in many instances. (24) Because online sexual harassment of Influencers could logically be classified as a form of workplace harassment, Part III follows by analyzing the current federal employment discrimination framework, detailing its inability to provide Influencer-victims of sexual harassment with relief. Expanding on this, Part III provides an overview of Title VII, with emphasis on Title VII hostile work environment claims, and identifies and discusses the problems that would likely block an Influencer from success if they were to bring a Title VII hostile work environment claim against the brand paying them to post on social media. (25) Finally, Part IV of this Note proposes that legislative action narrowly targeting online sexual harassment against Influences is necessary to protect these modern workers. (26)

1. BACKGROUND

   1. Social Media "Influencing" as a Job

      As previously explained, an Influencer is a social media user who can "affect the buying habits or quantifiable actions of others" by posting content sponsored by brands in a range of different markets on social media platforms (27) such as Instagram, Facebook, YouTube, Twitter, and LinkedIn. (28) Unlike with a traditional celebrity endorsement, social media users perceive Influences' relatable online presence and casual stream of content similarly to that of a close friend, rather than as an individual acting to persuade them to buy a product or engage in a service. (29) This "air of authenticity" creates the Influencer's power to influence. (30) Such power runs deep, as "[s]ix in ten YouTube subscribers would follow advice on what to buy from their favorite [Influencer] over their favorite TV or movie personality," (31) and nearly 40% of Twitter users report having made a purchase based off of an Influencer's Tweet. (32)

      Social media influencing as a profession would not exist without the many brands that capitalize on Influencers' authentic and relatable online personas and loyal follower base through Influencer Marketing. Influencer Marketing can take the form of payments or commission to Influencers, free goods or services, or any other benefit to Influencers that might affect how consumers view their endorsements in exchange for the Influencers promoting the supplying brand on their social media. (33) Influencer Marketing is growing greatly year by year, and the Influencer Marketing industry was estimated to be worth almost $10 billion in 2020. (34) This marketing approach is growing so quickly in part because it is viewed as effective by industry professionals. In a survey of 4,000 industry professionals, 78% reported that they would be dedicating their marketing budgets toward Influencer Marketing in 2020 (35) and 91% of those same industry professionals reported that they believed Influencer Marketing to be an effective form of marketing. (36) Some brands even "eschew[] traditional ads altogether" to focus predominately on Influencer Marketing. (37) The appeal for Influencer Marketing may also come from its significant return on investment. Businesses can earn anywhere from $6.50 all the way up to $20 or more for each dollar spent on Influences. (38) Thus, budgets spent on Influences are budgets well spent.

      Brands often hire an Influencer to promote a specific product or service, to promote their brand in general, to participate in a specific campaign the brand is launching, or to form a long-term partnership. (39) The Influencer-brand relationship may be formed directly by a brand contacting an Influencer they desire to work with, or vice-versa, after which the brand offers the Influencer free products or compensation in exchange for the Influencer to "review, rave about, mention, or simply show the products" on their social media profiles. (40) To a lesser extent, the relationship may also be formed with the help of an agent who matches an Influencer with a brand based on the Influencer's targeted audience and reach and a brand's goals and aesthetics. (41) Once a brand and Influencer connect, the two...