You knew that Facebook uses you in their advertising, right? Those sidebar advertisements (so called “sponsored stories”) where you often see your friends featured – “So and so likes this advertiser” – they do that with your likeness too. We have often ranted about it – now someone is doing something about it: In the case of Fraley v. Facebook plaintiff Fraley and others are suing Facebook in a class action suit, and the Federal court has approved Fraley versus Facebook moving forward.
U.S. District Judge Lucy Koh agreed that there was a chance that the plaintiffs could win their case based on claims that Facebook has committed fraud, and violated California law with unauthorized use of their image and name, in using Facebook friends’ images and names in advertising displayed in the Facebook sidebar.
Says Judge Koh, “plaintiffs have articulated a coherent theory of how they were economically injured by the misappropriation of their names, photographs and likeness.”
The issue of violation of California law is that California’s “Right of Publicity” statute makes it illegal to use another person’s name, image, voice, or signature, for advertising unless you have the consent of that person.
Facebook will likely claim that the ‘consent’ is buried deep in their Terms of Service (TOS), but give that they change their TOS (and privacy rules) as often as Newt changes his mind and sex partners, that’s not saying much.
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But even more novel is what Facebook has already claimed – that using your image in ads that your Facebook friends will see falls under the “newsworthiness” exception to the California law (where if something is newsworthy you don’t need consent) because you are a public figure to your friends, and also “expressions of consumer opinion” (i.e. you “Liked” the advertiser) is also ‘newsworthy’.
Facebook CEO Mark Zuckerberg has said in the past that “nothing influences people more than a recommendation of a friend” but that doesn’t make ti newsworthy. It may make it effective (we won’t say ‘good’) marketing – and in fact Zuckerberg has acknowledged that “a trusted referral is the Holy Grail of advertising” – but, that doesn’t make it newsworthy.
In fact, Facebook’s Chief Operating Officer (COO), Sheryl Sandberg, admits in the case paperwork that “making your customers your marketers” is the holy grail – it is, she says, the “goal we’ve been searching for.”
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Somehow, not sure you’re really helping your case.
Interestingly, just today (at least that is when we first saw it) Facebook has started putting this on every page:
Which leads to this:
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