Facebook Inserting Users Into Ads

Dan Solove at Concurring Opinions has some quite sensible concerns about Facebook’s new advertising program — specifically, that it may violate privacy law. I think he’s right, and then some…

In short, the new program allows corporations to set up Facebook pages where visitors who take certain actions can thereby trigger the sending of a “Social Ad” to their network of friends. Here is Facebook’s own explanation:

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.

First of all, as the Wired blog Epicenter notes, one reason this may well backfire is that many will see this as an onslaught of “lots and lots of product-pushing app spam” — even though the ads are nominally triggered by friends.

Not only is it spammy for the recipients, but it’s privacy-invasive for the Facebook user — even for the social-network butterfly who generally shares lots and lots of information. Given its past obliviousness to users’ privacy concerns in the News feeds debacle, this second misstep is really surprising. (They were supposed to have “learned” from last time, when they admitted they “really messed up.”) But the press release unveiling Social Ads contains only this feeble, minimal anticipation of privacy objections:

No personally identifiable information is shared with an advertiser in creating a Social Ad. … Facebook has always empowered users to make choices about sharing their data, and with Facebook Ads we are extending that to marketing messages that appear on the site. Facebook users will only see Social Ads to the extent their friends are sharing information with them.

This misses the point completely, just as they did with News Feeds. It’s nice that they don’t hand over data to advertisers. But as Dan and the New York TimesSaul Hansell both point out, users are only asked in general if they want to share information, not if they want their name and picture to be featured in an ad for some product. Just as with News Feeds, consent to share is assumed to remain constant even when the nature of the sharing changes dramatically. And that may not just raise the ire of users once again, it may break the law too. Here’s why:

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.”

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:

Reach the right people.
Instead of creating an advertisement and hoping that it reaches the right customers, you can create a Facebook Social Ad and target it precisely to the audience you choose. The ads can also be shown to users whose friends have recently engaged with your Facebook Page or engaged with your website through Facebook Beacon. Social Ads are more likely to influence users when they appear next to a story about a friend’s interaction with your business. [emphasis added]

The famous 1902 case that led directly to adoption of the New York law (and eventually to the tort as well) involved a teenager whose picture was used without her consent on advertisements for flour. Look at the Facebook ads and see if they seem any different to you.

[UPDATE: I should have mentioned in the post the problem that many of these appropriation suits face -- damages. Maybe a case isn't worth bringing if you can't show you suffered real damages. The girl in the flour lawsuit alleged she needed medical attention for the illness caused by her humiliation. But that doesn't make it any less illegal...]

[UPDATE 2: Follow-up post here]

[UPDATE 3: Facebook has retreated somewhat in its new advertising plans after getting a lot of heat for them, but it's unclear whether their improved policy includes Social Ads.]

45 Responses to “Facebook Inserting Users Into Ads”

  1. I do not belong to Facebook, but I am a former practitioner in the area of commercial misappropriation. While I respect Professor McGeveran’s opinion and agree that there may be a violation of the NY and CA statutes, he may have overlooked two issues: (a) whether agreement to Facebook’s terms of use (which will presumably be amended if they have not already been) would be deemed sufficient consent to use one’s persona in advertising going forward; and (b) whether such blanket consent might be voided if the member is under legal age (the Roberson case).

    I would tend to agree that consent must be specific to the use to guarantee that it is procured knowingly and competently.

    But there is something more. People should understand that when they allow themselves to be enticed into acting as billboards for someone else’s commerical gain, they may be exposing themselves to unwanted and unplanned consequences, as when celebrities endorse products or services that do not work out as advertised.

  2. Professor McGeveran is quoted in New York Times online:
    http://bits.blogs.nytimes.com/2007/11/08/are-facebooks-social-ads-illegal/index.html?hp

    Mazel Tov!

  3. [...] McGeveran, a professor at the University of Minnesota Law School who wrote about these laws in a blog post today, the law would apply to Facebook users anywhere if the ad were displayed in New York. [...]

  4. [...] to legal experts and as reported by the New York Times, Facebook’s Social Ads platform may be illegal under [...]

  5. [...] new system was the combination of friend photos next to advertisements. Now, according to at least Professor William McGeveran, these new Social Ads may be a violation of privacy laws. A common law privacy tort states, [...]

  6. [...] Another interesting take comes from Info/Law at Harvard. [...]

  7. [...] New York Times quotes William McGeveran, a professor at the University of Minnesota Law School, who quotes the law in a blog post: One who appropriates to his own use or benefit the name or likeness of another is subject to [...]

  8. [...] William McGeveran noted on his blog, “I don’t see how broad general consent to share one’s information translates into the [...]

  9. We tried to use this same NY Law to protect a child, Masha Allen, from a pedophile who published a book about her and advertised it as being about “child porn star Masha Allen.”
    (http://www.mashastory.info/sotos.html). No one, including the Manhattan DA, NY Attorney General, or the State of Georgia was interested in pursing the matter. I think Facebook users are probably safe – for now.

  10. [...] professor at the University of Minnesota Law School has asserted that Facebook Beacon – the social network’s new ad program for tracking activities on [...]

  11. [...] to jump headlong onto the bandwagon, but in case you hadn’t heard: Facebook’s Social Ads may bump up against [...]

  12. [...] McGeveran, association professor of law at the University of Minnesota Law School in Minneapolis, noted in a blog post that the new ad initiative only asks users in general whether they want to share information [...]

  13. [...] NYT cites blog posts — here and here — by GWU Law professor Dan Solove and Minnesota Law professor William McGeveran, who [...]

  14. [...] Law’s William McGeveran has a strong opinion on what’s wrong with Social Ads: “Not only is it spammy for the recipients, but it’s [...]

  15. I am indeed grateful to hear about this law.
    What many also bring up with this topic is the changes of Terms of Service and how many of these websites state in their agreements that one agrees automatically to any changes of service by agreeing to the terms.
    BUT… If I remember correctly – One party is unable to Unilaterally change the terms of a contract or service agreement without first obtaining the other parties consent before doing so.

    How would anyone know when to check a website so that they are aware of any changes have been implemented? and if they don’t agree with them, then what? Are they now able to Remove their information? are they able to leave that site as clean and clear as the day they went to it?

    I know for a Personal fact that is not always the case. Yes, indeed, I am grateful of hearing about this law. There is a commercial site in NY, that is holding my Name and all of my comments hostage. I have NO access to any of MY information, (I am unable to View or respond to the Majority of my comments and data); Which also means that there is no ability to respond to disparaging comments regarding my professional identity. I have NO access to my forum Members. Most importantly my name is being used without my permission.

    I asked them to remove, and they stated it was an inconvenience to them, but that they would be willing to “edit” several of my 8 years of posts for me, quoting their current TSA. What gives? They even are willing to EDIT my posts for me?

    When I joined the network, the terms of Service was indeed not the same as it is today.. I was not aware of any changes to the TSA, was not alerted, and the only time that I became aware of the damaging consequences was after the damages were in effect.

    What is really of interest is that The TSA also states that an individual is allowed to disable their account at anytime.. but, unfortunately I am not allowed the same privilege.. so, what gives??

    And today, they say that they have Non Exclusive Rights to my material, Yet then say they have full exclusive rights.. Quite Ambiguous No????

    Sometimes these laws may seem unfair to some, but, there are many TSA’s that also attempt take away the rights of the original authors, or the individuals who want to be able to control not only their Content, but their Name as well. Should we not have that right?

    Most individuals don’t realize the extent or even the problems that can occur when we randomly say Yes, I accept these agreements.

    Oh, and many think we can just sue, well, if one can find an attorney who is wiling to do it, it can cost a pretty penny!
    Karen M

  16. Americans love the fast buck and I am sure that many parents and individuals are looking forward to suing Facebook and it’s advertisers to the tune of millions if not billions of dollars. And finding a willing lawyer should not be all that hard. All it takes is one sucessful class action lawsuit and the floodgates will open…remember the cigarette company lawsuits,and pharmaceutical giant Merck just lost a jury verdict on pain killer Vioxx that will cost their company around 30 billion. Lawyers are licking their chops and New York lawyers are some of the best at winning huge settlements.

  17. [...] on how to block it, or here on how it all fits together, here being the wisdom of Doc Searls or here (must-read!) on the range of legal issues), I’m sure this will be the subject of much [...]

  18. [...] McGeveran, a professor at the University of Minnesota Law School, recently commented on  Facebook Social Ads in his blog. The post almost immediately picked up and quoted by several several high profile [...]

  19. [...] McGeveran, a professor at the University of Minnesota Law School who wrote about these laws in a blog post today, the law would apply to Facebook users anywhere if the ad were displayed in New York. [...]

  20. [...] son blog Info/Law, William McGeveran, professeur de loi, a même indiqué que [...]

  21. [...] a large majority of people find this intrusion into their privacy very dangerous. William McGeveran argues that this part of Facebook ads might even be illegal: It may break the law. […] Privacy law, [...]

  22. [...] story, which originated from a blog post on a Harvard Law weblog explained that a 100 year-old New York state statue may prevent the social network from using its [...]

  23. [...] The second part of Facebook’s advertising platform is likely not going to be used by nonprofits, for the most part, but is important to consider if Facebook is a part of your constitiuent-building or fundraising strategy. Social Ads are sponsored advertisements that are linked to users profile data, social graph, and activities. Ads can be targeted by profile data. Also, if a friend agrees,  their activities around a particular product (like, say, a movie rental) will show up on their news feeds. Of course, there are huge privacy issues, here, and one law professor thinks the ads are illegal. [...]

  24. [...] would be used for spamming acquaintances in my name is disturbing. It may also be illegal. Facebook isn’t too worried, though. We can opt out if we so choose. If we don’t, [...]

  25. [...] Bill McGeveran continues this thread, noting how privacy law treats things differently when personal data is used for advertising purposes: 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.” [...]

  26. [...] più carina del corso di chimica. Il caso sarebbe controverso anche sotto il profilo legale: secondo le norme previste da molti stati confederati (compresi quello di New York e la California) chi utilizza il nome, la fotografia, il ritratto o la [...]

  27. [...] possible legal hassles coming out of New York and California. As William McGeveran pointed out on a Harvard Law blog when Facebook’s Social Ad program launched, such wrangled user-endorsements from Beacon could [...]

  28. After reading the article and the comments I have come to the conclusion to start this discussion about social software comparable to Facebook in The Netherlands as well. I would like to share this information with you all. I use the website of a non-profit organisation http://www.geschilonline.nl. Soon all the text will be in english as well. Have fun exploring the site, leave your comments and we can all learn a lot. Regards,
    Ronald Scheer

  29. [...] to William McGeveran of the Harvard Law School such acts by Facebook is borderline spam where the advertiser is inserting the user into its ad campaign without explicit permission. [...]

  30. They want every protection in law and statue…without liability by contract…so that they can exploit every DMCA loop hole….with the pure intent on generating a profit as a pure for profit corporation….

    I think that any DMCA protections should only inure to non-profit status orgs….then we would have a vehicle that would work for the evolving development of internet process that would benefit society.

    Anything less is just a private concerns for profit at the least cost…so as to increase the bottom-line.

    http://www.facebook.com/terms.php

    Limitation on Liability
    IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP, BUT IN NO CASE WILL THE COMPANY’S LIABILITY TO YOU EXCEED $1000. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO COMPANY FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM COMPANY, REGARDLESS OF THE CAUSE OF ACTION.

  31. [...] son blog Info/Law, William McGeveran, professeur de loi, a même indiqué que [...]

  32. From a marketing standpoint, it’s brilliant. But from a privacy perspective….it’s like Google all over again. Sigh.

  33. [...] became a punch line, as in the hilarious response from Nicholas Carr at the time.) I have criticized these programs before from a privacy perspective and am now writing a law journal article about the broader issue of [...]

  34. [...] McGeveran, University of Minnesota law professor, who wrote extensively about Social Ads’ possible legal ramifications when the platform was announced, the problem is that users may be unwittingly lending their [...]

  35. [...] I’ve completed a manuscript for my newest journal article, which began life as some posts (starting here) musing about the legal implications of Facebook’s then-new advertising programs, including [...]

  36. [...] I’ve completed a manuscript for my newest journal article, which began life as some posts (starting here) musing about the legal implications of Facebook’s then-new advertising programs, including [...]

  37. [...] considering their whole business is built on the model of open information sharing. Just as in the Beacon and News Feed controversies, the company has done something stealthily and invited a backlash that [...]

  38. Frend!,…

    Now, according to at least Professor William McGeveran, these new Social Ads may be a violation of privacy laws. A common law privacy tort states, blog post that the new ad initiative only asks users in general whether they want to share information [...]
    Blogging News – Blogging News Information You Can Use
    Thanks!,..

  39. [...] document states their belief that the commercial nature of content will always be apparent (tricky marketers? never!) and don’t see the need to “label it as sponsored or [...]

  40. would be used for spamming acquaintances in my name is disturbing. It may also be illegal. Facebook isn’t too worried, though. We can opt out if we so choose. If we don’t

  41. tealthil her du tery

  42. Ok so not so good for us end users but as a company it’s a little better..what can you do? Hopefully this will help keep the spamming to a minimum though.

  43. looks like facebook is at it again went surfing for others with the same concerns/issues. i find it annoying and make it a point NEVER to click on any of their ads. i’ll type it into a search bar before i click on an ad.

  44. [...] decision to make consent a default setting was the right way to go. One Harvard law professor even suggested the ads were illegal. Over eight months later, the masses appear to understand what’s going on and it’s [...]

  45. Recently I deleted my Facebook Account after hearing about experiences people were having re: their privacy. Last week I read an article online about how FACEBOOK was using ‘your’ picture from your account to advertise and endorse products online. Today, my wife logged on to her account and found 2 entries that stated that, ‘I had lost 8.5 lbs with some colon cleanse product that I purchased, etc.’ ALL OF IT IS PURE FICTIONAL AND BS. I have never bought, used or visited the site or product. I am really pissed and cannot find any way to stop this crap. Her page say’s I made these entries yesterday. It even has my old FACEBOOK picture next to the entry. I do not know what to do to stop this invasion and illegal activity of passing on lies to unsuspecting people/friends. Don’t preach to me that I ‘agreed’ to share my information when I signed up. What they are spreading are PURE lies.