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.
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.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.