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The New Facebook Ads - Another Privacy Debacle? 201

Posted by Zonk from the ask-then-do-ask-then-do dept.
privacyprof writes "Facebook recently announced a new advertising scheme called 'Social Ads.' Instead of using celebrities to hawk products, it will use pictures of Facebook users. Facebook might be entering into another privacy debacle. The site assumes that if people rate products highly or write good things about a product then they consent to being used in an advertisement for it. Facebook doesn't understand that privacy amounts to much more than keeping secrets — it involves controlling accessibility to personal data. '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."'"
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The New Facebook Ads - Another Privacy Debacle? More

The New Facebook Ads - Another Privacy Debacle?

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  • Ya (Score:4, Insightful)

    by moogied ( 1175879 ) on Friday November 09, 2007 @12:02PM (#21296551)
    Man nothing would be worse then ad's targetting me on a website where I put my full name, school, work, a list of friends, a list of likes and fears, and pictures of myself.

    Those bastards.

    • Re: (Score:3, Informative)

      by Brian Gordon ( 987471 )
      Come on social network users, you know what you were getting into when you filled out all of those boxes.. don't tell me it didn't cross your mind that companies would pay billions for that data.
      • Well, okay, from the way it skims, they're offering advertisers space to advertise to your friends that you like something you've already decided you don't mind your friends knowing you like. So if I put "West Wing when Aaron Sorkin still running it," maybe West Wing gets an add on the side of my page or a friends' newsfeed. Unless my 2 second skimming is wrong... okay, maybe it was one and a half seconds... it's a far cry from this to the girl who had her flickr photo stolen for a major advertising blitz

    • Re:Ya (Score:5, Informative)

      by Mrs. Grundy ( 680212 ) on Friday November 09, 2007 @02:43PM (#21299491) Homepage
      I don't think you get what is going on here. It is not targeting ads to you. It is targeting ads to others using you as an unpaid spokesperson without your direct consent (or consent in the small print of the TOS). In the example on the facebook site, a person who liked the movie 'Top Gun' has their image being used to advertise Blockbuster. I'd be pretty pissed to find my face on a Blockbuster or Walmart ad just because I liked a product that one of these companies wants to sell. I think it is all pretty unseemly.
    • Since you've do all this and have friends who trust you. Have you considered AMWAY? With Facebook and Amway your financial possibilities are endless. Amway will re-brand their products to help you promote yourself on facebook. Just think the millions who come to facebook looking for advice on whats hip and now will look to you for Haircare and cleaning supplies. Because your hip and now, just like facebook and just like Amway. Your future is just a click away.

  • Facebook is public (Score:3, Insightful)

    by Harmonious Botch ( 921977 ) * on Friday November 09, 2007 @12:06PM (#21296649) Homepage Journal

    The site assumes that if people rate products highly or write good things about a product then they consent to being used in an advertisement for it.
    No. The site assumes that if you post something about a product where the whole world can see it, then you consent to being used in an ad. Which seems quite reasonable to me. ( As an example, by writing this post on slashdot, I am implicitly giving the whole world permission to say "H Botch says that the above quote is stupid".)

    • Re:Facebook is public (Score:4, Insightful)

      by cybermage ( 112274 ) on Friday November 09, 2007 @12:24PM (#21296943) Homepage Journal
      The site assumes that if you post something about a product where the whole world can see it, then you consent to being used in an ad.

      That's an assumption that will get them sued. There are laws and legal precedence about using people's likenesses without their consent. Just because you say you like a product or service in public it does not give anyone the right to use that as a commercial endorsement of the product or service. If it were so, you'd see celebrities constantly hounded to give their opinions on products hoping to use their response in advertising.

      • Re:Facebook is public (Score:5, Informative)

        by ericrost ( 1049312 ) on Friday November 09, 2007 @12:26PM (#21296995) Homepage Journal
        They have consent.

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

        • Re:Facebook is public (Score:5, Informative)

          by dnormant ( 806535 ) on Friday November 09, 2007 @01:01PM (#21297627)
          More specifically (from your link)

          "When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content."

          • Bingo! You have granted them a non-exclusive license to use any part or all of your content for any purpose they are so inclined to fulfill. And even though the license expires

            automatically upon removal of your content, you 'acknowledge' (and I'm not really sure what that means in a legal sense ... does it agree or grant permission?) that the Company may retain your content as 'archived copies' (whatever the hell that means).

            The best part of this is that the Terms of Use may change at any time and the

    • Re: (Score:2)

      by Storlek ( 860226 )
      No, it's really more akin to saying "H Botch thinks the above quote is stupid, oh and buy our product so we can get more money."

      I don't use Facebook, but I'd personally object much more to the fact that they're making money off of my picture (and not forwarding one thin dime of the profit onto me) than that people are using my picture for anything.
    • But it is even more controlled than that. It is more to advertise to your friends saying "Hey, your friend Nick just did xyz and said abc about it" rather than "Here is this random guy named Nick and he just did xyz and said abc about it"

      Which makes a lot of sense to me as both a consumer and as a possible advertiser. ESPECIALLY if I am advertising my local company or service. (Nick just used Moe's Dry Cleaning, where you can get your clothes dry cleaned for a low price.")
    • You are wrong. This isn't a question of whether people are seen in public, it's whether their image (and statements) are being used for commercial purposes. Advertising is, by definition, a commercial purpose. With very few exceptions (e.g., legitimate news coverage) you have to get written permission before you can use anyone's likeness or words for commercial purposes.

      For an analogy, go to a stock photo site that accepts pictures from the public, e.g., iStockPhoto. They really drive home the fact that
    • No, Facebook is NOT public - the default is limited access - which you may ramp up fruther. Unless you are on my friends list all you can see is my name and the picture I choose for my face. If you ARE my friend, you can see all my pictures, my e-mail and phone, my likes, my hates, and the fact that I induldge my brother by commuting zombiecide with him occasionally, and a fairly spotty account of what I've been up to for the last two years.

      I am not willing to make that information public - but I want my f
  • Sounds a lot like the case when Virgin Mobile used a photo of a person from Flickr that was uploaded under "an Attribution Licence, which the Creative Commons website explains, will let others copy, distribute and display your photo and derivative works based upon it, provided they give credit the way you request."

    http://www.out-law.com/page-8494 [out-law.com]

    • Re: (Score:3, Insightful)

      by sammy baby ( 14909 )
      (IANAL)

      I think you're a bit off on this one. In the Flickr / Virgin Mobile case, the problem revolves around whether the photo had the appropriate attribution. Copyright over the image was never in question.

      In this case, the question is who owns the content of that review. If I post a positive review of something on a site, with a picture of me, do I retain the copyright over my review? And just as importantly, can my image be considered part of the review? If Facebook owns the copyright, and the image of t

      • Nope (Score:3, Insightful)

        by mbessey ( 304651 )

        In the Flickr / Virgin Mobile case, the problem revolves around whether the photo had the appropriate attribution.

        Actually, in the Virgin Mobile case, the issue at hand is that they didn't have a model release for the person in the picture. The picture was properly attributed.

        It's well-established in the law (they even cited the code in the Slashdot summary) that you need someone's explicit permission to use their likeness for commercial purposes. Just having the photographer's permission isn't enough. How

        • Re: (Score:2)

          by Sosarian ( 39969 )
          You miss the whole length discussion where this model release business is country/jurisdiction specific and they probably felt they didn't need one since they don't use them generally speaking where they are located.

          • Re: (Score:2)

            by mbessey ( 304651 )
            Sorry, I was just responding to the issue of attribution. They seem to have done the right thing there, according to the requirements of the Creative Commons license.

            I have to admit that I don't know much about Australian law, but under the (possibly flawed) assumption that it's similar to US and UK law, they really should have investigated the privacy issues some more. Given the inherent difficulty of suing someone in another country, they'll presumably get away with it, but it's fairly obviously incorrect
  • to facebook, combined with some legal mumbo jumbo, potentially give facebook the right to use those pictures?


    You agree to let facebook use any pictures uploaded for yadda yadda yadda...
    *I agree*

    Hey, no fair! You're using my picture.

    I really don't see this as similar to, say, me going around and taking pictures of people and using them without consent.

    • Re: (Score:3, Interesting)

      by kebes ( 861706 )
      To give a more extreme example, if Facebook decided to use people's profile pictures, and Photoshop their heads on the bodies of naked people... would that be okay? Probably not. No amount of EULA mumb-jumbo or implied consent would make that legally permissible, both because of the particular laws that apply to things like modeling (especially adult modeling) and because any court would agree that this exceeded a "reasonable expectation" of the rights the user was granting to Facebook.

      Now, in the case o
      • To give a more extreme example, if Facebook decided to use people's profile pictures, and Photoshop their heads on the bodies of naked people... would that be okay?

        From what I've seen of the dimwits on Facebook, so long as the bodies were "cute" or "hawt" the owners would be pretty psyched.

  • Definition of privacy (Score:5, Insightful)

    by elwinc ( 663074 ) on Friday November 09, 2007 @12:08PM (#21296697)
    Post is 100% right. The definition of privacy is control of personal information. Secrecy is one means of control, but not the only one. Things like the "do not call" list are implementations of privacy by other means; i.e. they have your personal information, but you can still prevent them from using it by calling. Credit card and bank account info are also private: you give your CC# to a vendor and the vendor is only allowed to use it for the purpose of that transaction. Facebook apparently fails to appreciate the distiction between privacy and secrecy. They need to understand the magnitude of their error.

  • Users Choose (Score:5, Interesting)

    by rueger ( 210566 ) on Friday November 09, 2007 @12:09PM (#21296715) Homepage
    I find the Facebook privacy stories frustrating because they seem to always ignore one thing - in almost every case the Facebook user decides how much information to make public, to whom, and which applications to install.

    Facebook actually does a pretty good job of giving users control over their information and arguably is transparent about the ways that it may be used. That's more than a lot of e-commerce sites can claim, and in an age of spam-bots and the like probably commendable.

    And ultimately it is optional, you have to choose to sign up.

    • I find the Facebook privacy stories frustrating because they seem to always ignore one thing - in almost every case the Facebook user decides how much information to make public, to whom, and which applications to install.

      Sorry, but that's just not true [slashdot.org].

      • Re: (Score:3, Interesting)

        by telbij ( 465356 )
        Your cited post says nothing to contradict the grandparent. Facebook offers impressive privacy controls, and they work better than anything else out there. The fact that they don't offer fine-grained control in one particular area, or they release a new feature that uses information in new ways the user didn't expect, doesn't mean their privacy controls are bogus. Bottom line is there are a lot privacy puritans who will see any kind of personal information database as a conspiratorial slippers slope, but

    • Not necessarily (Score:2, Insightful)

      by MMaestro ( 585010 )
      I'll admit I'm a Facebook user but I've NEVER submitted my photo (or any other photo) to Facebook simply because I'm too lazy and use it too infreqently to care. That said, there are at LEAST a dozen photos of me on that site, none of which I gave permission to anyone to post. You can't realistically expect people to monitor sites like Facebook just to protect their privacy.

      • Re: (Score:3, Insightful)

        by bkr1_2k ( 237627 )
        Asking your friends to remove your picture should be a simple process. Monitoring facebook might seem like an unreasonable expectation to uphold your privacy but monitoring your friends shouldn't be.

    • And ultimately it is optional, you have to choose to sign up.

      Is it though? The social networking business model (pre-OpenSocial) was a parasitic, viral one. Every network wanted to make themselves indispensible. If Facebook is the only way to access your friends' photos, you sign up.

      Was this argument ever explored legally with regards to software click-wrap licenses? EG. I needed AutoCAD because my colleagues work with it, but I didn't get to negotiate terms.

      HAL.

    • Re: (Score:3, Interesting)

      by keithjr ( 1091829 )
      in almost every case the Facebook user decides how much information to make public, to whom, and which applications to install.

      Were you around when they first introduced the Facebook Feed? For those who don't use Facebook, this the system that functioned a lot like an RSS feed, broadcasting changes in all your friends' profiles to you when they happen. And, of course, vice versa. It was rolled out without warning and just started working on day, to many people's surprise.

      Despite that fact that all
  • Facebook, and its owner can simply put that consent for these ads into their Terms of Service agreement for new and existing users. Simple as that.

  • Ahem, from the terms of use: (Score:5, Insightful)

    by ericrost ( 1049312 ) on Friday November 09, 2007 @12:17PM (#21296837) Homepage Journal
    "When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content."

    So, you gave them permission, good luck fighting it.

    Suckers.

    • Re: (Score:3, Insightful)

      by Liquidrage ( 640463 )
      Good job. That's what I was wondering a few posts up from yours and just was too lazy to go look up their ToS.
      This doesn't seem like a privacy issue. It seems like a "you're using their service for free issue. Deal with it or leave" issue.

      Seems like the same people that complain about this are the same types that cry freedom of speech when posting stupid crap on a private forum.

    • Re:Ahem, from the terms of use: (Score:5, Informative)

      by saterdaies ( 842986 ) on Friday November 09, 2007 @12:29PM (#21297049)
      Not quite. So, my friend Amy posts a picture of the two of us on Facebook as her profile picture. She has given Facebook a license to that photo. That's what the agreement stipulates. First, if Amy didn't take the photo, she might not own the rights to it and Facebook could be sued for copyright infringement. Yeah, they have that clause saying that you warrant that you have the rights to post it, but that simply won't hold up if they're sublicensing it. Sites can't be sued for what their users post, but then if they start sublicensing it in an intentional manner, it gets a lot more blurry. Second, and this one is a lot more air tight, the agreement does NOT include a clause granting endorsement rights. As the original post said, that is very different from copyright rights. Amy might own the copyright on many pictures of me. She does NOT have the right to license my image and likeness for the purposes of endorsement. She has the right to post the picture and even to give Facebook the right to use the image how they see fit as long as it isn't considered using the image/likeness as an advertisement or the like.
      • "and you represent and warrant that you have the right to grant"

        To CTA so that its back on the user if they don't, because they made a false representation.

        "and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof,"

        Umm.. that's not included in ANY PURPOSE ON THE SITE?

    • Facebook will probably lose in California with that. California has a right of publicity [findlaw.com], enacted because California has so many celebrities that advertisers would like to use in ads.

      The EULA says "for any purpose on or in connection with the Site or the promotion thereof". But it doesn't cover the use of images in connection with advertising of third party products. That's a separate issue. California requires explicit prior consent "for purposes of advertising or selling, or soliciting purchases of p

    • Re: (Score:2, Informative)

      by Mr. Slippery ( 47854 )

      So, you gave them permission, good luck fighting it.

      From their Privacy Policy [facebook.com]:

      1. You should have control over your personal information. Facebook helps you share information with your friends and people around you. You choose what information you put in your profile, including contact and personal information, pictures, interests and groups you join. And you control the users with whom you share that information through the privacy settings on the My Privacy page.

      Using people's personal information i

    • "When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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 dis

    • Re: (Score:3, Informative)

      by Registered Coward v2 ( 447531 )
      Another thought:

      You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content."

      As soon as you see your content being used for advertising, you can remove it and thereby automatically revoke Facebook's right to use it. that could be a logistical nightmare; and why would any company open themselevs up to a suit simply becasue t
    • According to what you pasted you could sue them if they continued to use your image after you pulled it from Facebook. They reserve the right to keep archives, but the license granted by making the image available expirse as soon as the user removes it.

      This could get hairy if the ads are kept statically somewhere.

  • This is fine (Score:5, Insightful)

    by jonnythan ( 79727 ) on Friday November 09, 2007 @12:18PM (#21296853)
    You rate a product there, you are providing Facebook with your opinion of the product. You agree to let Facebook use this opinion any way they want. You've also agreed to let Facebook use the pictures you've uploaded.

    This conforms just fine with the user agreements. If you don't like it, don't use Facebook.
  • This story going public may be the first introduction to the phrase "online privacy" and its associated menagerie for most FaceBook users.
  • There probably ought to be a new Terms of Usage suit to demand that users who favorably rate or rank products get discounts. There should be a system to verify the tracking previously mentioned to ensure that those who case a favorable uptick in product sales GET those discounts for sales they caused.

    There BETTER be an at-will re-rate/de-rate option, too, so that if one initially favorably rates a product and then later experiences an problem can re-rate or de-rate the product, AND still keep their discount

  • Once again, not as simple as it seems. (Score:3, Insightful)

    by Petey_Alchemist ( 711672 ) on Friday November 09, 2007 @12:43PM (#21297289)
    Thanks kneejerkers for more of the same old "READ THE TOS DOOFUS".

    If you actually read the TOS, you'd see this:

    "When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content."

    Now, there's stuff in there about Facebook copying your content for storage. There's stuff in there about letting Facebook perform, display, or translate your content. There's even stuff in there about letting Facebook use your content to promote *Facebook*.

    But can anyone in there see any sort of language that says Facebook can use your content to promote other products?

    Read it carefully. I don't think there is such language, and I think there might actually be a case for misappropriation here.

    • Re: (Score:2, Insightful)

      by Petey_Alchemist ( 711672 )
      Someone said earlier that you're just letting Facebook use your opinion as information--that you just let Facebook know that you like, say, an iPod, and then Facebook posts something that say "John Doe likes the iPod!", and then it's fine, because Facebook isn't promoting Apple, they're just rebroadcasting the information you've posted to the site.

      If that's the case, fine. I just hope that A) the rebroadcast is not labeled "Advertisment", and B) that Apple is not paying for the slot, because otherwise that'

    • Re: (Score:2)

      by PhxBlue ( 562201 )

      Yeah, except that "for any purpose" phrase opens a hole wider than the goats.cx guy's.

      • I'm not so sure about that, only because (as I read it) that language explicitly refers to the promotion of the Site itself, not third parties.
  • It's not the privacy part, Stupid! I already put my picture out there. I want to be PAID when you make money off of my image. It's as simple as that!
  • If I walk into a Walmart cause I'm stuck in middle america and I need to buy water as I drive to the next town - I don't endorse anyone choosing to buy from Walmart.

    If I buy gas from a service station as I drive thru Nevada - I don't have a choice - I don't endorse their gasoline brand.

    If I buy a license from Microsoft for software - when I'd rather be buying from Apple or a Linux brand if I had a choice - I don't endorse their OS or the company (even if I did work there and my ex-wife does work there).

    This
  • This looks way too easy to abuse, assuming they have automated the profile selection process to some degree.

    I mean, if I wanted to be a dick about it, I'd create a profile, let's call him "Big Dick", with a picture of a large penis, or some other equally commercially inappropriate image stuck to it. I would then proceed to comment loudly, publicly and favourably on just about everything I saw being prominently advertised on Facebook. I would be especially gushy over any kind of enterprisey Microsoft ad.

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