How the ad industry’s social media practices could be upended by the GOP

Advertisers who for years have pushed for stronger standards against objectionable content on social media now are facing scrutiny themselves from the House Judiciary Committee over whether those efforts violate anti-trust laws. The committee, headed by Rep. Jim Jordan (R-Ohio), has issued a sweeping subpoena to the World Federation of Advertisers and its affiliated Global Alliance for Responsible Media seeking documents and communications based on allegations the groups and their members are violating of the Sherman Anti-Trust Act. See America's Hottest Brands 20 brands that are trending in 2023 Click here GARM is made up of more than 100 major advertisers, agency holding companies, trade associations and social platforms. Jordan, in letters to the groups, contends members are violating anti-trust law by colluding to demonetize content they deem to be hate speech, harassment and misinformation but which House Republicans contend is legitimate conservative speech. All this is unlikely to produce legislation that would pass a Democrat-controlled Senate or spark investigations by the Democrat-controlled Justice Department or Federal Trade Commission. But the effort could ultimately fuel state and private litigation and spawn additional waves of subpoenas to marketers, agencies and social platforms. More social media news: See the first ad deal on Threads Wide-ranging subpoena The subpoena covers all documents and communications regarding how the WFA and its members developed the GARM charter in 2018 and a Brand Safety Floor and Suitability Framework in 2019, and how those policies have been enforced. That also includes communications between the groups and members, a list of 133 companies and organizations that includes marketers such as Procter & Gamble Co., Unilever, L’Oréal, General Motors, American Express and Verizon, plus all the major social platforms, most major agency holding companies and all the leading social platforms. The committee issued the subpoena in May after a March request produced no documents. A spokesman for the WFA said the group is cooperating with the committee, but declined to say whether any documents have been turned over or when they would be, and committee staff didn’t return a call for comment. A May letter from Jordan to the groups indicated WFA counsel said the groups were still examining the scope of the request and how to find all the requested information. A person familiar with GARM’s work cast doubt on any anti-trust theory. Advertisers in the group make decisions on spending individually, not collectively, and the social platforms involved in the group have not committed to jointly enforce specific policies as a result of GARM’s work, this person said, adding that the has been overseen by legal counsel consistently. “Don’t they have anything better to do?” the person asked rhetorically, of the House committee. Potential for ‘bad’ documents But the subpoena could ultimately have a significant impact, according to Steven Cernak, an antitrust attorney with Bona Law and former in-house anti-trust counsel for General Motors who’s vice chair of the Antitrust Section of the American Bar Association. It’s probably not an antitrust problem if competitors are “just developing common definitions of terms like ‘misinformation’ or tools to use to find some ‘bad’ content more efficiently or effectively—and then each company decides how to use those definitions and tools,” Cernak said in an email. But it could be a problem if competitors—either advertisers or platforms—“agree on where to advertise or whose ads to accept,” Cernak said. “I think there’s a real possibility,” Cernak said, “that Rep. Jordan finds some ‘bad’ documents.” Even if the committee’s efforts never lead to federal legislation or civil litigation, they could produce documentary evidence useful to Republican state attorneys general or private litigants. States have no standing to sue under the federal Sherman Act but might be able to sue under state anti-trust laws. Individuals who can prove they’ve been financially harmed by illegal collusion to demonetize their social content also have standing to sue under the Sherman Act, which provides triple any proven economic damages. The broad membership of GARM means defendants could go beyond trade groups to target deep-pocketed marketers, agencies and social platforms. But financial damages would be hard to prove, Cernak said. “You’d need a plaintiff who wants to make the point on principle.” Violations of the Sherman Act also can lead to criminal penalties, including prison sentences of up to a year, but such charges would have to stem from federal prosecution that appears unlikely. Proving any anti-trust violations would have to require evidence of how GARM member marketers, agencies and social platforms actually coordinated efforts, which could spawn far more subpoenas. Throttling conservative speech? The subpoena follows numerous statements by Jordan and House Republicans accusing social platforms of unfairly throttling conservative speech through their content moderation guidelines. Jordan’s committee also has issued a series of subpoenas to academic social media researchers that has led to considerable time and expense, The New York Times reported in June. GARM and the WFA are based in London, making enforcement of a Congressional subpoena harder. But most of the group’s members are U.S.-based or have offices in the U.S., and Jordan’s initial letter in March was addressed to two U.S.-based principals of the groups—Mastercard Chief Marketing Officer Raja Rajamannar, who chairs the WFA, and GARM director and former Mars media executive Rob Rakowitz. #NEWS: @Jim_Jordan demands information from the Global Alliance for Responsible Media and the World Federation of Advertisers about potential violations of antitrust law and their coordination to demonetize and eliminate disfavored content online. pic.twitter.com/ndrii0LSmQ— House Judiciary GOP 🇺🇸 (@JudiciaryGOP) March 22, 2023 In that letter, Jordan said, “GARM determines what types of speech are disfavored, bragging that it now has … common definitions on harmful content for advertising & media.” Those categories of content include “misinformation; debated sensitive and social issues; arms ammunition; death injury or military conflict and hate speech and acts of aggression.” Jordan accused GARM of using “arbitrary standards” applied by members to “demonetize and eliminate disfavored content online. Indeed, GARM boasts that it ‘drove an agreement across advertisers, agencies and platforms to set a framework that limits advertising support’ for disfavored content.” “This collusive conduct reduces consumer choice and cuts off access to diverse coverage on matters of national interest,” Jordan wrote. “Under the Sherman Act, these types of agreements harming competition are illegal—whether or not there is ‘an effect on prices’ and regardless of ‘the social justifications.’” Chilling effect? How much of a chilling effect the House inquiry might have on collective industry efforts to keep ads away from objectionable content is unclear. But industry organizations and executives that have been vocal about the issues are reticent now. Executives of the Association of National Advertisers, 4A’s and IAB declined to comment on the subpoenas, and Rajamannar and Rakowitz deferred to the WFA. WPP’s GroupM, whose brand safety expert John Montgomery has been outspoken on social media issues, declined to comment. The ANA also declined to comment on the status of an effort discussed last year to work with BBB National Programs to create an industry self-regulatory body on social media issues. GARM’s Brand Safety Floor and Suitability Framework is based in part on IAB Tech Lab’s Content Taxonomy. The IAB declined to comment on the anti-trust issue. But a person familiar with the matter said those taxonomies are category labels and do not prescribe how to classify content. Over the past two years, GARM has published four voluminous Aggregated Measurement Reports in which nine companies and social platforms—including Meta, YouTube, Facebook, Instagram, Pinterest, Snapchat, TikTok, Twitter and Twitch—self-report how they apply the group’s brand safety and suitability standards. Those reports indicate the platforms develop policies and apply standards independently. For example, Twitter and YouTube, in the most recent November report, did not report any moderation efforts in an area most likely to invite scrutiny from the House G.O.P.—GARM’s “Debated Sensitive Social Issue” category, which covers “insensitive, irresponsible and harmful treatment of debated social issues and related acts that demean a particular group or incite great conflict.” But the platforms are taking their time releasing any further information to GARM in the wake of the House inquiry. After publishing Aggregated Measurement Reports each April and November of 2021 and 2022, GARM has yet to publish one in 2023. The latest report “was delayed by several platform data delays, so it was shifted for publication after Cannes,” said the WFA spokesman in an email. Also read: Takeaways from Cannes 2023 Pushback from another corner GARM’s prior reports, however, do suggest a largely successful industry effort to moderate social content, with everything from hate speech to terrorist videos to child exploitation and offers to sell illicit drugs being rooted out, and fewer than 1% of objectionable posts slipping through the cracks. Not everyone is convinced, however. One group that wants stricter policing of social media actually welcomes the House G.O.P. inquiry. Eric Feinberg, VP of content moderation for the group Coalition for a Safer Web, said he still finds ISIS videos and posts from people selling illicit drugs throughout social platforms, regardless of what they report to GARM. “I totally agree GARM should be in front of congressional hearings,” Feinberg said, adding that he would suggest questions to friendly committee members should that happen and be eager, himself, to show the committee objectionable social content that pops up in real time. “These organizations put together a check box kind of thing,” he said. “The platforms all buy in and say look at what we’re doing. And the advertisers say ‘Look, we’re doing something.’ I’m involved with this, and do you know how many kids are still dying from illegal drugs sold on social platforms? Or stupid things like choking games?” Check out the latest Ad Age events and award programs

How the ad industry’s social media practices could be upended by the GOP

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