Are Facebook’s Social Ads even legal?
By Sean P. Aune
Facebook is all excited about its new “Social Ads”, but are they legal under the law?
The state of New York and Facebook have clashed before, and if a century old law comes in to play, they may again.
Facebook announced its Facebook Pages this week, and with that, the concept of “Social Ads”. When a user joins as a “Fan” of a business page, it shows up in their mini-feed, giving other users a sense that their friend endorses the company or brand.
The problem lies in the privacy laws of New York. According to William McGeveran, a Harvard professor, this may violate privacy laws in relation to use in advertising.
Privacy law, as it should, treats advertising uses differently from other uses. One of the four common-law privacy torts forbids “appropriation.” Specifically: “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.”
Essentially, this says that no one’s image can be used in advertising without their express consent. (As Virgin Mobile learned recently) The question will arise from if the users are giving away their consent by merely participating. The action is of their own free will, but is that action giving a tacit endorsement to the product, and, in turn, acting as an advertisement that the user is unaware of?
According to a response to The New York Times, Chris Kelly, the chief privacy officer of Facebook, feels that the Social Ads are in the clear. The social networks reasoning is that the information in their feeds merely represents an action the user has chosen to take.
This, of course, is all academic at this point, but it raises important questions about how, and where, current laws apply to the Internet. There are factors involved that no lawmakers even 20 years ago, let alone 100, could have foreseen.
Related:
Entry was posted
on Sunday, November 11th, 2007 at 4:59 pm
under 
Print This Post
Read more entries by Sean P. Aune.
Stumble It!
