Is Facebook Facing A Future Lawsuit?

Just days ago Facebook announced their new Social Ads system. One of the key features of the new system was the combination of friend photos next to advertisements. Now, according to at least Professor William McGeveran, these new Social Ads may be a violation of privacy laws. A common law privacy tort states, “One who appropriates to his own use or benefit the name of likeness of another is subject to liability to the other for an invasion of his privacy.”

That’s not the only issue. As the New York Times points out, under a New York privacy law “‘any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained’ can sue for damages.” I’m not a lawyer but it sounds to me like any suit against Facebook regarding this issue may have a case if there were damages experienced as a result from the ads.

As a result of these claims being published, Chris Kelly, chief privacy officer of Facebook, presented a number of reasons why he thought these arguments were baseless. I hope Chris received legal guidance prior to making a response to the New York Times. I will directly quote what was stated in the New York Times so I don’t misrepresent Chris:

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.

It sounds like Facebook is on the defensive for this one. I have no legal experience so it’s difficult for me to comment on the signifcance of these accusations. It appears as though damages would be required for anybody to file suit. One thing is clear though: using someone’s friends to sell them products is a very delicate thing. Do you feel as though this is overly aggressive marketing? Do any of you speak legalese?