Hot on the heels of Dan Kelly’s prediction of the eventual fall of social networking sites, it seems that Facebook has embroiled itself in another controversy.  The upshot of the most recent story is that Facebook is essentially using its power of cyber eminent domain to sieze and use photos posted by users for advertisements unless they change their privacy settings.

For me, this raises two questions:  The first is, whether or not Facebook users might have an action under right of publicity laws.  Generally, a right of publicity claim requires the plaintiff prove that somebody (1) appropriated plaintiff’s name and likeness to their advantage, (2) without plaintiff’s consent; and (3) resulting injury to the plaintiff.  Typically, these claims are limited to celebrities because non-famous people usually don’t have value in their name and likeness that the misappropriation injures.  However, its not unthinkable to believe that there is a conceivable theory of injury for Facebook users to pursue these claims.  (On a side note, I’m sure Facebook’s terms of use give them some level of authorization to use photos, so that would be a likely hurdle as well.)  

The second question is, does Facebook really need this revenue?  It seems like the outcry from users would be pretty predictable.  Although the public expects and accepts a certain level of encroachment by advertisement, there’s a line.  If you cross that line, you risk alienating a substantial portion of your audience.  The stakes are even higher when the people you are alienating are responsible for the content on the site.  If Facebook really has to go this far, it would seem that social networking sites are doomed to fail.

  • On the other hand, it’s unlikely Facebook will be entitled to protection under Section 230?

  • I would agree that protection is unlikely under 47 U.S.C. 230. While I am unfamiliar with the particulars of this Facebook ad program, it would seem to me that Facebook is an active participant in any misappropriation. While I see a contrary argument, I think the safe harbor of section 230 is most properly applied in situations where the plaintiff’s claim is based on a failure to monitor and remove material, i.e. negligence. Here, Facebook is intentionally and actively promoting the posting of the problematic advertising.

  • I would agree that protection is unlikely under 47 U.S.C. 230. While I am unfamiliar with the particulars of this Facebook program, it would seem to me that Facebook is an active participant in any misappropriation. While I see a contrary argument, I think the safe harbor of section 230 is most properly applied in situations where the plaintiff’s claim is based on a failure to monitor and remove material, i.e. negligence. Here, Facebook is intentionally and actively promoting the posting of the problematic advertising.