That certainly sounds like it should be illegal, but by what law? In such slippery situations such as invented sponsorship there are certainly questions of defamation. Even just looking to the situations in which Facebook turned "likes" into ads, there are questions of publicity of private life, false light publicity, and misappropriation of names and likenesses. Each state handles these issues differently, but in the context of social networking sites, the question is really simple: what does California law say?
The current settlement arises from California Civil Code §3344 which "prohibits the nonconsensual use of another's name, voice, signature, photograph, or likeness for advertising, selling, or soliciting purposes, and creates a cause of action for persons injured by such actions." (Fraley v. Facebook at 797.) The class is nationwide. You can opt out of the class, but don't expect to go suing Facebook on your own under your own state's law, even if you find its privacy and publicity laws preferable.
This seems absurd, but we have all already agreed that Facebook is only liable to us, its users, under California (and U.S.) law. Down toward the bottom of Facebook's "Terms of Service" is a section labeled "Disputes." There it states that:
You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.As unfair as it might seem, these forum selection clauses hold up in court, even in the face of minor disaffirmance. And Facebook is not the only major social network operating under California law. For example, Twitter, Google Plus, LinkedIn and Pinterest all choose California as their forum. (Tumblr, always striving to be different, chooses New York law.)
So if you don't like the way Facebook or Twitter is handling your account, look to the U.S. Code or the California Civil Code. Minnesota statutes? Not so much.
This is an interesting post. The NY Times posted an article a few days ago that relates this in a way I believe. http://bits.blogs.nytimes.com/2013/02/04/facebook-to-tell-users-they-are-being-tracked/?ref=technology. If you have time I would look at the article. It describes how Facebook has come to an agreement with the Better Business Bureau about Facebook being more transparent with regards to tracking and third party advertisers. Despite this, the article suggest that Facebook is still not doing enough. If anyone is reading this, my question to you is, Can Facebook ever do enough to protect the privacy aims of users and still make a profit? Perhaps Facebook should require monthly/yearly membership fees? Is not being as private as you like a fair trade-off when considering that the service is free?
ReplyDeleteThat is an interesting article. It seems inevitable to me, given the coming storm of "do not track," which will hopefully bring the issue of tracking into the public conscious. I doubt that Facebook will ever satisfy everyone and still make a profit as a free site. 100% satisfaction is impractical, but I think Facebook can get the majority it needs through transparency. This requires easily accessible controls (implemented for the Sponsored Stories as part of the Fraley settlement) and full information. They will also need to adopt policies that are more respectful of privacy if they are more transparent. Automatically using indicias of your identity to generate endorsements isn't especially respectful.
ReplyDeleteIn general, I see Facebook privacy as a whole lot of hullabaloo over what is basically a consent or waiver issue. You don't like that friends can repost your pictures without your permission? Don't post so many pictures. You clicked through the privacy policy; you agreed.
ReplyDeleteWhere this gets sticky for me is that users don't know what they're consenting too. To the extent that Facebook's unauthorized endorsements violate the privacy policy that you clicked through, I agree that's bad. Although longer, more complete and accurate privacy policies? No thanks. I don't even read the ones I get now.
Even setting aside whatever limitations there are of click-through privacy policies (unreadable and apparently not enforceable sometimes?), the average Facebook user is really trading limited rights to invade privacy with other users. The brilliant Will Stancil has a theory, which I think is at least partially right, that the threat of privacy invasion on Facebook is worth it to people because as a Facebook user, you have the opportunity to invade other people's privacy. So you remain Facebook friends with your ex to make sure that their new partner isn't cuter than you and you accept that your ex is essentially doing the same thing.
Choice of law clauses seem particularly relevant and useful for internet based firms, after all which state is your internet in?
ReplyDelete