Facebook Ads May Be Social, But Also Illegal
Barely had Facebook unveiled its latest scheme to cash on its current user base and concerns already hit the web: the social networking site may be out of the grey area and way into illegal initiatives.
November 12, 2007
According to William McGeveran, association professor of law at the University of Minnesota Law School in Minneapolis, the Social Ads program may violate privacy law. In theory, Social Ads will mix user information with their action in order to promote certain products or services:
“Facebook’s ad system serves Social Ads that combine social actions from your friends – such as a purchase of a product or review of a restaurant – with an advertiser’s message. This enables advertisers to deliver more tailored and relevant ads to Facebook users that now include information from their friends so they can make more informed decisions.”
However, this practice is against the privacy law, McGeveran points out:
“One who appropriates to his own use or benefit the name of likeness of another is subject to liability to the other for an invasion of his privacy.” (Restatement (Second) of Torts Section 652C) Even more significantly, several states including New York and California have statutory provisions that are similar. New York’s well-known statute creates both a misdemeanor and a civil cause of action for “[a]ny person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained.”
In the mean time, Facebook only asks users in general if they want to share information. The members of the community are not specifically asked whether they'd like to have their their names and pictures associated with a certain product or not.
“I don’t see how broad general consent to share one’s information translates into the specific written consent necessary for advertisers to use one’s name (and often picture) under this law. And the introduction of Facebook’s sales pitch about the program to advertisers leaves little doubt that individual users’ identities will be appropriated for the benefit of Facebook and advertisers alike,” McGeveran adds.
In the end, the professor concludes that it all comes down to one thing:
“The key question: even if this user understands she is sending her movie ratings to her friends, does she understand that she’s also starring in a Blockbuster ad? If there are clear disclosures — not just that information-sharing is happening but also that your identity will be used for promotional purposes — as well as an affirmative opt-in, then there is no problem under these privacy laws. Surely some Facebook users want to plug products they use and enjoy, and I have no quarrel with them — as long as they truly consent.”
The again, would they consent, especially since they would do it for free?