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8

Responses to Blog Reviews of The Future of Reputation: Part II

Cover 4 120 x 176.jpgThis post responds to more reviews of my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, Oct. 2007). I posted Part I of my responses to reviews here. This is Part II.

1. Susan Cartier Liebel at Build A Solo Practice

Susan Cartier Liebel, a lawyer who started her own law firm and now works as a consultant on developing a law practice, reviewed The Future of Reputation in her blog Build A Solo Practice, LLC. In her review, she writes:

[A]nyone who uses the internet in any way shape or form, blogging, YouTube videos, social media and all sharing of information in digitized form needs to read this book. And even if you don’t use the internet, you can still be a victim of another’s use of the internet to invade what you believe is private. . . .

There are no clear cut answers although the author poses some interesting thoughts. It is a book sure to stimulate serious debate amongst layperson and lawyer alike. But in the end we are responsible for ourselves and our uses of the internet. With every action taken we self-define free speech and privacy. I highly recommend this book.

I am delighted by Susan’s thoughtful review of my book.

2. Bram Strochlick at Harvard Crimson

Bram Strochlick at the Harvard Crimson wrote a very nice review of the book. He was not part of my free-review-copies-for-bloggers experiment, but I can’t resist quoting briefly from his review:

Rather than simply warning readers about possible scenarios, Solove shows first-hand the lives that have been ruined, combining descriptions of the original events with verbatim reproductions of comments posted by various bloggers throughout the Web. . . .

Solove’s crisp and refreshing writing strays from the ponderous tone many writers take when criticizing the Internet, achieving a balance of humor and levity that keeps the pages turning and demonstrates a real understanding of and engagement with the youthful Internet culture he analyzes. Another key strength is the unassuming nature of the author’s prose; one does not have to be at all familiar with how the Internet works or what the current laws regarding Internet usage entail to fully enjoy this often saddening chronicle of lives destroyed by virtual gossip.

My goal was to write a widely-accessible book, and I’m quite pleased that Bram believed I succeeded.

I have little more to say about Susan and Bram’s reviews. The lesson I learned from clerking on federal district court was that if the judge indicates strong agreement with an attorney’s argument, then it’s generally best for that attorney to shut up before the judge changes his or her mind.

3. Amber Taylor at Prettier than Napoleon

To counterbalance the two reviews above is this review from Amber Taylor, a Harvard-educated lawyer who describes herself as a “small-l libertarian.” Having read Amber’s blog, Prettier Than Napoleon, I knew that she would vehemently disagree with my arguments in the book. And she did not disappoint. I found her review to be quite good and thought-provoking. I don’t mind disagreement as long as it is smart and interesting — which Amber’s perspective is. She begins:

If the reader does not accept certain first principles (and I do not), Solove’s analysis will not be persuasive nor his recommendations appealing. This book does, however, provide an excellent summary of the internet’s effect on personal information distribution and reputations.

Amber first critiques my suggestion that the law better empower people to have defamatory or privacy-invasive information taken down from websites:

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3

The Facebook-Fandango Connection: Invasion of Privacy?

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Facebook recently rolled out a new advertising program called Social Ads, where Facebook users’ images, names, and words are used to help advertise products and services. I blogged about Facebook’s Social Ads here and here, contending that they are likely a violation of the tort of appropriation of name or likeness as well as the right to publicity tort.

Peter Lattman at the WSJ Blog has a great new post about Facebook that throws in another even more troubling wrinkle:

Last Sunday the Law Blog purchased three tickets to “Bee Movie” on Fandango, the movie site. After we did this, Facebook automatically updated our profile to say, “Peter bought ‘Bee Movie’ on Fandango.”

Huh? Did we want everyone on Facebook to know our movie-buying habits? Not really. But it seems we agreed to this. According to Fandango’s privacy policy, which we agreed to by using the site, “If you are a member of a social network service (such as Facebook, MySpace, etc.) or you use other Internet sites where you have authorized them to gather information about your online behavior on Fandango . . . Fandango may share information regarding your activities . . . with those third parties pursuant to your authorization.”

Then we checked out our privacy settings on Facebook. Under “Privacy Settings for External Websites,” there’s a Fandango icon, indicating that we’ve agreed to have our actions on Fandango sent to our Facebook profile. We changed our profile, mandating that they never — never! — do this again.

This case illustrates why the current legal regime regulating personal information at most websites is so deeply flawed. The default settings are set to allow information sharing and disclosure, with users often completely unaware of how their information is going to be used. Businesses frequently tout how they are protecting privacy by providing users with “notice and choice” about how their information will be collected, used, and disseminated. Yet the system rarely results in informed consumers or meaningful choices.

So imagine: You go to Fandango and buy tickets to see a movie — and then all of a sudden your purchase is being revealed publicly to everybody you know on Facebook. You probably didn’t even know that Facebook had this deal with Fandango. What if more websites like Fandango start to collude with Facebook? Does this mean that every time we visit a website, every time we make a purchase, the information starts showing up in our Facebook profiles and on our friends’ Facebook profiles?

At least Social Ads, as I understood it, involved people publicly stating they liked or used a product. This is still problematic, for the reasons I discussed in my posts — being used in an ad unwittingly is a harm even if one has publicly praised the things being advertised in the past. But now Facebook is taking things one step beyond by exposing people’s personal information to the public. Perhaps Peter Lattman doesn’t want the world to know that he saw Bee Movie. Perhaps he does. But this is something he should decide, not the corporate officials at Facebook or Fandango.

“Poor Peter,” Fandango and Facebook will say, “But you should have read our privacy policies! It’s all your fault Peter.” Fandango’s privacy policy states:

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2

Anonymity and Cyber-Bullies

anonymity1a.jpgOver at Wired’s Threat Level blog, Kim Zetter discusses a story of cyber-bullying that led to a suicide and a newspaper’s decision to not reveal the identities of the responsible parties:

On Tuesday the St. Charles Journal in Missouri published a sad story about cyberbullying that drove a 13-year-old girl named Megan Meier to commit suicide last year. Meier had been harangued by one of her MySpace friends named “Josh Evans” who sent her a barrage of hateful comments that sent her over the edge.

It turns out that Evans was a pseudonym created by two adults — one of whom knew the Meier family very well. The St. Charles Journal decided to protect the privacy of the two adults and declined to name them in the story. That didn’t sit well with incensed readers, who tracked down what they say is the identity of one of the adults and posted it online. Now the paper is being criticized for giving the adults anonymity.

Zetter continues:

The St. Charles Journal wrote in the story that it decided not to name the woman and the other adult involved in the incident out of concern for the woman’s own teenage daughter. The two adults haven’t been charged with any crime.

But readers of various blogs that posted the story were furious with the paper’s decision. By matching certain details in the article with property records, they found the name and address of a woman who they believe created the Josh Evans persona, and published her details online.

The story in the St. Charles Journal is here.

Hat tip: Susan Cartier Liebel

4

Facebook and the Appropriation of Name or Likeness Tort

facebook.jpgA few days ago, I posted about Facebook’s new Social Ads and I argued that they might give rise to an action under the appropriation of name or likeness tort. The most common formulation of the appropriation tort is defined in 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.”

A related tort, a spin-off of appropriation, is the “right of publicity” which as defined by the Restatement (Third) of the Law of Unfair Competition § 46: “One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purpose of trade is subject to liability for [monetary and injunctive] relief.”

These two torts have sometimes been confused with each other, but the basic difference is that appropriation protects one’s dignitary interests in not desiring to have one’s identity exploited and used for another’s benefit whereas the right of publicity protects a person’s property interest in the commercial value of her identity.

Both torts are potentially applicable to Facebook’s Social Ads.

Over at Digital Daily, John Paczkowski discusses my post and adds:

Now Facebook claims 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,” the company explains. “Facebook users will only see Social Ads to the extent their friends are sharing information with them.” That’s certainly a thoughtful assurance. But it doesn’t exactly address the issue of Facebook appropriating user identities for its own benefit.

At the NYT”s Bits, Saul Hansell discusses the response of Chris Kelly, the chief privacy officer of Facebook:

Mr. Kelly said the advertisements are simply a “representation” of the action users have taken: choosing to link themselves to a product. He added that in many states, consenting to something online is now seen as the equivalent of written consent.

And he argued that it would be difficult for someone used in one of these ads to object because that person had already chosen to publicly identify themselves with the brand doing the advertising.

“We are fairly confident that our operation is well presented to users and that they can make their own choices about whether they want to affiliate with brands that put up Facebook pages,” Mr. Kelly said.

I don’t agree with Kelly’s take on the law. Suppose Michael Jordan says on national TV that he likes Wheaties. Does this allow Wheaties to use his image on its cereal box or in a commercial? The answer is no. The fact that Jordan says he likes Wheaties can be used in a news story; it can be used in a biography of Jordan. But it cannot be used in a commercial advertisement. Comment (c) to the Restatement’s section on appropriation states that “the defendant must have appropriated for his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness.” That’s exactly what’s being done with Social Ads. They are not merely reporting facts (which is ok under appropriation and publicity); instead, they are using the reputation and standing of people to promote commercial products and services.

The fact that a person publicly states that she likes a product is not equivalent to that person’s consent to be used in an advertisement. Otherwise, Coca Cola could snap a photo of a celebrity drinking a can of Coke and then use the photo in its ad campaign without paying the celebrity. That celebrity’s lawyers would be licking their chops if that were to happen.

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1

Responses to Blog Reviews of The Future of Reputation: Part I

Cover 4 120 x 176.jpgA few weeks ago, I offered free review copies of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, Oct. 2007) to bloggers who would agree to write a review of the book. A few reviews have now come in, and they are quite thoughtful and interesting. Many engage with the book at a more substantive level than the typical mainstream media reviews, and I’d like to discuss and respond to some of them.

1. David Giacalone at f/k/a

David Giacalone,a lawyer, haiku writer, and former FTC official, has written two posts about The Future of Reputation at his blog f/k/a. His first post, a prelude to his review, is a fascinating etymology on the word “gossip”:

If you click on Dictionary.com, you’ll see the many meanings of the word gossip. . . . The first three meanings were expected. But #3 and #4 were surprising. A gossip is “a close friend or companion,” and in Britain the term is sometimes used to denote one’s godparent. . . . Similarly, Wiktionary explained, “From Old English godsibb, where it meant “godparent”. Later it came to mean a person who is your friend or companion. Since friends do a lot of talking the modern meaning of ‘idle talking’ has stuck.” . . . . So, “a gossip” went from being a friend you would choose to serve as godparent to your child to “A person who habitually spreads intimate or private rumors or facts.”

In his second post, he reviews my book. David writes:

The Future of Reputation brings together the themes in useful and interesting ways, showing important connections and ramifications, and making me want to talk about them with friends (and foes) and to find solutions to the problems he raises. . . .

This book is the perfect playground and mosh pit for guys and gals who enjoy designing or critiquing statutory (or common law) legal solutions to important societal problems. Dan Solove has suggested an ample variety of potential legal changes (with lots of details both offered and lacking) to keep the wonks up late at night debating the proposals — talking them out, fleshing them out, or throwing them out. Of course, law students and professors, lawyers and legislative staffers, come readily to mind. But, you don’t need a law degree to be intrigued by the proposals in The Future of Reputation, and to have a contribution to make in the discussion this book should inspire and provoke.

David’s review isn’t without some thoughtful criticism of my book:

Dan speaks of wanting the law to “cast a wider net, yet have a less painful bite,” and of using the law to shape norms rather than imposing direct prohibitions. But, laws that create wider nets of responsibility and impose new restrictions are unlikely to be effective if their “bite” doesn’t draw some blood or leave a scar. Likewise, new norms usually only make an impression and change behavior when there is a genuine downside to ignoring their prescriptions and proscriptions.

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14

The New Facebook Ads — Starring You: Another Privacy Debacle?

facebook.jpgFacebook 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:

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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:

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