The New Facebook Ads — Starring You: Another Privacy Debacle?
posted by Daniel Solove
Facebook recently announced a new advertising scheme. Instead of using celebrities to hawk products, it will use . . . you! That’s right, pictures of you and your friends will appear on Facebook ads to make products more enticing to Facebook customers.
As Facebook’s website describes its new “Social Ads” program:
Facebook Social Ads allow your businesses to become part of people’s daily conversations. Ads can be displayed in the left hand Ad Space — visible to users as they browse Facebook to connect with their friends — as well as in the context of News Feed — attached to relevant social stories. The social stories, such as a friend’s becoming a fan of your Facebook Page or a friend’s taking an action on your website, make your ad more interesting and more relevant. Social Ads are placed in highly visible parts of the site without interrupting the user experience on Facebook.
Here’s the sample ad that Facebook includes on its social ad description page:
According to the NY Times:
Facebook wants to put your face on advertisements for products that you like.
Facebook .com is a social networking site that lets people accumulate “friends” and share preferences and play games with them. Each member creates a home page where he or she can post photographs, likes and dislikes and updates about their activities.
Yesterday, in a twist on word-of-mouth marketing, Facebook began selling ads that display people’s profile photos next to commercial messages that are shown to their friends about items they purchased or registered an opinion about.
For example, going forward, a Facebook user who rents a movie on Blockbuster.com will be asked if he would like to have his movie choice broadcast out to all his friends on Facebook. And those friends would have no choice but to receive that movie message, along with an ad from Blockbuster.
At this point in reading the article, it seems as though participation in the ads (by the person being used in the ad) is fully consensual. But the article goes on to say:
Facebook says that many of its 50 million active users already tell friends about particular products or brands they like, and the only change will be that those communications might start to carry ad messages from the companies that sell them. Facebook is letting advertisers set up their own profile pages at no charge and encouraging companies like Blockbuster, Condé Nast and Coca-Cola to share information with Facebook about the actions of Facebook members on their sites.
As eager as advertisers are to tap into the rich trove of information that people freely offer about themselves on sites like Facebook and MySpace.com, there are nevertheless growing concerns about the privacy issues raised by such tactics. Facebook’s announcement yesterday came just a few days after a Federal Trade Commission hearing in Washington about online privacy and customized ads. The F.T.C. expressed concern that advertisers may have access to too much information about people’s online activities.
Facebook says it is using only information that its members choose to share. And, while the site is using the information on behalf of advertisers, Facebook is not giving it to marketers, said Chris Kelly, Facebook’s chief privacy officer.
According to a post by Saul Hansel in the NY Times blog, Bits:
These ads will be all the more powerful because the ad will be tied to an explicit endorsement of the advertiser by your friend. “Suzy is a fan of Verizon Wireless.” Or “Billy just entered the Pepsi Challenge.”
But Facebook has also made what could be a critical mistake: It is not asking its users whether they want to star in advertisements for the products they use. . . .
Mr. Kelly went further and argued that users shouldn’t have any reason to complain. The new ads only kick in if users choose to share information about their product choices. And in any case that information is only sent to their friends.
I think that’s rather insensitive. To some users, it may be fine to say “I like Red Bull” but not fine to have their pictures appended to a Red Bull ad. There are cases where you like the product but don’t like its ads.
What is deemed to be valid consent to appear in the ads? It seems as though Facebook might be assuming that if a person talks about a product, then he or she consents to being used in an advertisement for it. But such an assumption might be wrong, and the use of a person’s name or image in an advertisement without that person’s consent might constitute a violation of the appropriation of name or likeness tort.
According to the Restatement (Second) of Torts § 652C: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”
To avoid violating this tort, Facebook should first ask a user, before using her name or likeness, for permission to do so in an advertisement. Otherwise, the user might have an appropriation claim. It is wrong to assume that just because a user visits a website or rates a product highly or speaks well of a product that the user wants to be featured in an ad.
Hopefully, Facebook will start getting a better understanding of privacy. In my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, I discussed an earlier privacy misunderstanding by Facebook when it decided to create a system that notified all of a person’s friends about new changes in the person’s profile. The result: Facebook users were outraged. Facebook thought that there would be no privacy problem since the information was already public. But it was wrong. As I wrote:
What many of the Facebook users objected to was the increased accessibility of their personal data–the fact that others would be alerted to every new update to their profiles immediately. Privacy can be violated not just by revealing previously concealed secrets, but by increasing the accessibility to information already available. . . . Privacy . . . . involves establishing control over personal information, not merely keeping it completely secret.
I sure hope that with Social Ads, Facebook isn’t assuming that if a person publicly says positive things about a product, then he or she wants to be in an advertisement for that product. That would be another grave misunderstanding of privacy on Facebook’s part.
November 8, 2007 at 1:29 am
Posted in: Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Tort Law, Web 2.0
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Responses (14)
MD lawyer - November 8, 2007 at 9:53 am
* The day I find my name in a Facebook ad is the day I cancel my account. It’s already creepy that they encourage you to store your credit card information on their servers, and that they ask for IM and e-mail account passwords from you to import your contact lists. This is too much.
* I wonder if anyone will be able to start developing ads that allow negative feedback about businesses. I can imagine an “iHate” application that notifies friends “John Smith hates Blockbuster Video. Add the iHate application to see why…”
* It seems like this sort of thing has been coming for a while. Most people have very few pieces of information that are truly “secret,” and any notion of “privacy” probably comes from the fact that any given person or business only has a few snippets of information about any given person. If the entire business community got together and pooled their information that I’ve shared with them over the years, they’d probably know everything there is to know about me… which freaks me out. Perhaps now I’ll read your book… and in the process give amazon more information about me.
gr - November 8, 2007 at 10:38 am
“The day I find my name in a Facebook ad is the day I cancel my account.”
Your name will be shown to others. You wont see it.
William McGeveran - November 8, 2007 at 1:42 pm
Wow, I agree that this sure sounds like tortious appropriation. It seems an awfully big stretch to convert the fact that you like a product and you agree to tell friends that you like it into consent to appear in ads for the product.
I also note (from Dan’s casebook, actually) the famous New York appropriation statute, which creates both a criminal misdemeanor and a civil cause of action for “a person whose name, portrait, picture or voice is used within this state for advertising purposes … without the written consent first obtained.”
That’s a requirement for an affirmative and written opt-in. Based on the NY Times account, Facebook is violating it. Quick, somebody call Andrew Cuomo…
Supra - November 9, 2007 at 11:33 am
It’s also notable how easily we adjust to gradual erosions of our privacy. Facebook’s “news feeds” are now the norm – they are practically what defines Facebook. More painfully, they’re one of the most useful features of the site. (To be fair, you can limit what networks receive your feeds, and even “hide” feeds.)
If Facebook can push Social Ads into users’ consciousness (and get legal consent, which shouldn’t be tough), I doubt users will be fazed for long. Which will make it even smoother for other sites that decide it’s a brilliant marketing tool.
Joel - November 9, 2007 at 12:46 pm
I knew this day was coming.
The sad fact is their TOS agreement specifically says they can (and will) do what they want with any info you give them. It becomes their property.
WimblyWombat - November 9, 2007 at 1:11 pm
I think the term “reasonable expectation” comes in here. Your ratings are usually used for surveys. We do not expect survey companies to use our information in this way — such data is usually used in an aggragated form, with individual preferences anonymised.
So, using data in this way goes beyond what I would think would be reasonably assumed.
gemils - November 9, 2007 at 1:50 pm
I think that one thing not enough people do in this lovely digital age is read the TOU / EULA information that sites and products ask you to agree with. From Facebook:
“By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.”
Sounds like if you agree to use the site, you agree to let them use anything that you post as they see fit. Ooops.
Tony - November 9, 2007 at 3:00 pm
The day my picture appears in an AD, is the day they are slapped with a lawsuit. If I see other adds, I simply use Adblock and block em all. Screw ads, I’m just trying to catch up with old friends.
Adam - November 9, 2007 at 3:45 pm
IANAL but….
Companies like to write all sorts of things into their TOS/EULA which are not enforceable. They use it to bully uninformed people into doing what they want, regardless of what the law allows.
For example, lets take something that MD Lawyer said. Imagine that I was stupid enough to actually give them my credit card number. Since that is, presumably, User Content, a particularly shifty person could argue that it is well within the bounds of the TOS to take that information and use it in the connection with the Site, say to buy a new router or to pay for today’s bandwidth. I don’t care what their TOS says, that still makes them thieves.
They might also choose to cherry pick which user content they want to use to create their derivative works. For all we know, they used only 2 pieces of content create their example ad: the name and picture of Megan Marks. Doing so, even though its a legitimate use of that user content is, IMHO, identity theft and should be treated as such. In fact, I consider the whole idea as identity theft.
Vision - November 9, 2007 at 6:24 pm
Well it certainly wouldn’t be the first time Facebook has stooped to shady business practices. If you look at their TOS you will notice that they claim only people 16+ can join and yet when I visited their advertising link last week and got some stats for one of the polls they implemented for an advertiser you could see that in the graphs, MANY of the participants were in the 13-17 category.
So Facebook is already getting rich off of and profiting by and exploiting minors by using their poll responsises for advertisers. I guess they figure now everyone else their is good to exploit as well. And furthermore, if Facebook claims that only people 16 years and up can join, then where are they getting these stats for the 13-17 year olds?!? Exactly, they no very well that they have many minors on their site and they are more then happy to capitolize on it.
Vision - November 9, 2007 at 6:57 pm
Sorry for the double post but it would appear as though FB has recently changed their age of eligibility. Last week it was 16+ and NOW it is 13+.
Regardless, they are still exploiting minors. What next? Schools start polling 9 year olds for advertisers to find out kids’ favorite toys to make the school some extra coin? Facebook is dangerous and getting worse by the day with their invasion of privacy practices.
Bobby - November 10, 2007 at 5:45 am
Maybe we should just call it FaceCrook instead. They’re pimping us big time. They make money off us and we get nada. Sounds like YouTube all over again. I’m closing my account and going back to Myspace.
Shamus - November 13, 2007 at 1:02 pm
I deleted my Facebook account this morning. It was starting to feel too much like Brave New World meets the Borg.
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[...] products – urgh! Participation is supposed to be consensual, but an informative post by Daniel Solove argues [...]
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