Home > Copyright Law, Intellectual Property Law, Privacy Rights > JUST SAY “NO” TO FACEBOOK’S AD POLICY


February 3, 2011
Casually “Like” Does Not Mean Formally Endorse

So, Facebook fan, you thought you were casually expressing a “like” for some event, product, film,  restaurant or establishment?  Think again.  You and your friends may soon find your names and likenesses being used to advertise that film or product!  And, just in case you wondered, no, you won’t be compensated for your “endorsement.”

This is the consequence of Facebook’s new Social Ads Policy, which pairs advertisements posted by its advertisers with information derived from FB users’ “social actions.”  FB seems to define social actions  as user-generated postings and indications of user-preferences (e.g., when you indicate that you “like” a page or posting).

It gives the following example of the kinds of “social ads” that will be created:

Assume that an establishment named “Denver Sushi” pays for advertising to appear on Facebook.  FB says it may “pair” that ad with a banner or crawl-line it creates that proclaims “Nan Gao likes Denver Sushi.”   If it makes that pairing, when Nan’s “friends” conduct a search that meta-triggers the Denver  Sushi ad, they may well also trigger the “endorsement.”  End result:  Nan Gao’s pseudo-“endorsement”  ends up being displayed  on some of her friends’ Facebook pages.

Aside from making money for Facebook, there would appear to be two objectives:  To convince you  that, if your friend Nan likes Denver Sushi, you will dig their California rolls, too.  Alternatively, to     persuade friends & family to take Nan to Denver Sushi to celebrate some occasion.

Is this use of Nan’s information proper?

In my view, probably not.  For several reasons.

(1) It may well violate Nan’s “right of privacy’ and/or “right of publicity.”

Let me take the law of New York as an example.  Under section 50 of the New York Civil Rights Law, a company or corporation cannot use a person’s name, portrait or picture for advertising without that person’s express written consent.

FB has attempted to satisfy this requirement by modifying its “Terms of Use” so as to ensure that you give that consent by default.  In other words, it states that you authorize FB to use your information as part of the social ad pairings it creates unless you expressly opt out of the program.[1] As far as I’m concerned, that doesn’t cut the mustard.  You have to be the one to freely, knowingly and expressly authorize FB to use your information for advertising purposes.  FB cannot authorize itself.  (It would be different, in my view, if FB set the “social ads” program up on an “opt-in” basis, and equated affirmatively “opting in” with consent.  That would probably satisfy the legal requirement.)

Lest we get ahead of ourselves, I should note, that FB’s “Terms of Use” purport to contain a choice-of-law provision to the effect that California law governs.  I leave it to lawyers licensed to practice in the State of California to opine on whether FB’s intended practices would fare any better under California law.  I would be surprised if they did.  If anything, California has the reputation for having stricter privacy and “right of publicity” laws than elsewhere.   After all, because it is home to Hollywood, it is sensitive to the need to protect individual’s names and likenesses against improper commercial use.

(2) Possible Copyright Violations: If FB goes further and adds Nan’s photo, avatar or icon to the ad+endorsement pairing, it may end up not only violating rights of privacy and publicity, but also the photo’s copyright.

Once again, FB has attempted to cover itself.   Thus, its “Terms of Use” go on to state that you give it a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post.”  It also goes on to define “IP content” in blunderbuss fashion as “content that is covered by intellectual property rights, like photos and videos”.   FB “”Statement,” Para. 10.

Again, I have several questions.  First, whether that clause can even effect a “transfer” of rights within the meaning of the Copyright Act.  See 17 U.S.C. §201(d) and 101 (definition of term “transfer of copyright ownership”).  Second, even assuming FB can claim to have gotten some rights from its users, whether any “non-exclusive” rights it can claim are themselves “transferable” and/or “sub-licensable.”  I do not believe so.

(3)  False Advertising & Deceptive Trade Practices: Finally, FB’s use of Nan’s username, photo or avatar in connection with or as part of a third-party advertisement may give rise to a valid “false advertising,” unfair or “deceptive trade practices” claim.   I think there would be a good faith basis for such a claim in New York.  I leave it to California lawyers to weigh in on the “deceptive trade practices” laws there.

* * *

Although I have serious doubts about the legality of FB’s “social ads” program and the use it intends to make of your information, why wait for a court to rule?  You can protect yourself  now by telling FB in no uncertain terms that it cannot use your information in its “social ads.”

This is what you do:

(1) Sign into Facebook. Go to the top Righthand part of the Page.  Pull down the “Account” Menu.

(2) Click on “Account Settings”.

(3) Click on the Tab at the top of the Page that is furthest to the right,  entitled “Facebook Ads.”

(4) Close any Pop-ups, e.g., “Understanding Social Aids”.

(5) Then, where it says,

Allow ads on platform pages to show my

information to . . .

Change your selection from the default,

  • “Only my Friends”   to
  • “No one.”

(6) Click on “Save Changes,” to record your change.

(7) You will have to REPEAT this process a SECOND Time at the bottom of the Page.

There, where it says

“Show my social actions in Facebook Ads to:”

Change your selection from the default,

  • “Only my Friends”   to
  • “No one.”

(8)  Again, click on “Save Changes.”

Unless you opt out twice, it would appear FB intends to interpret you as having “consented” to its use of your information in advertising.

[1] Thus, its “Terms of Use” provide as follows:

You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.

FB “”Statement of Rights and Responsibilities,” Para. 10 (emphasis added).