Just days after Facebook unveiled plans for a new advertising network that relies on user-provided details about themselves for marketers to target their ads, some legal experts said the system may violate privacy laws.
William McGeveran, association professor of law at the University of Minnesota Law School in Minneapolis, noted in a blog post that the new ad initiative only asks users in general whether they want to share information – not whether they want their name and picture used in an ad for a product. The new Facebook system will serve up so-called Social Ads, which combine actions taken by a users' friends – like a purchase, review or a service - with an advertiser's message. These ads will appear in a user's news feeds as sponsored content or in the ad space on the site, according to Facebook.
Common-law privacy torts, McGeveran said, forbid someone from appropriating the name or likeness of another, and several states – including New York and California – have such laws. New York, for example, forbids the use of a person's "name, portrait, picture or voice" from being used for advertising purposes without the prior written approval from the person.
"I don't see how broad general consent to share one's information translates into the specific written consent necessary for advertisers to use one's name (and often picture) under this law," he wrote. "And the introduction of Facebook's sales pitch about the program to advertisers leaves little doubt that individual users' identities will be appropriated for the benefit of Facebook and advertisers alike."
Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington said that the New York law was intended to ensure that a person's name or likeness would not be used to endorse a product without their consent.
"As for whether or not it can be applied to Facebook, there are probably two questions: First, did the person meaningfully consent to the endorsement?" he said. "And second, can the New York law be enforced against an internet firm? Based on what I know so far, it looks like the answers would be 'no' and 'yes.'"
Facebook did not immediately reply to a request for comment. When it announced the advertising system, the company noted that no personally identifiable information will be shared with the advertiser in creating a social ad and that Facebook users will "only see social ads to the extent their friends are sharing information with them."
Daniel Solove, an associate professor of law at George Washington University law school, blogged that Facebook "might be assuming that if a person talks about a product, then he or she consents to being used as an advertisement for it. 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."
Furthermore, that assumption may violate the common-law torts noted by McGeveran, Solove said.
Peter Swire, a law professor who specialises in privacy at Ohio State University, noted that the key question is whether Facebook users have given their consent for their name or face to be used to endorse products. State laws differ about how a person can give consent, he said. "Quite possibly Facebook didn't think about this problem, and they may need to make their consent more explicit to avoid common law privacy problems," he added.
In addition, there is a separate issue for obtaining consent from minors, Swire said. While states have different definitions for the age constituting a minor, those laws require parental consent to use a person's name or likeness to sell product. "Facebook should be careful using this tool with minors," he said.
Ari Schwartz, deputy director of the Center for Democracy and Technology who specialises in privacy issues, said that Facebook understands it will have a problem with the service if users feel that their friends are receiving recommendations from them that they did not want to be sent. The only way the new system will work, he said, is if Facebook provides the advertisement in a way that "improves the service rather than coming across as blatant advertising."
"That is a positive sign both for privacy and user control on the internet that they understand the ethical issues involved," he said. "In reality, will it actually work that way? They are pushing the boundaries."