New Facebook Ad Network Might Violate Privacy Laws

The ad network Facebook recently announced may not just be invasive and objectionable. It might also be illegal.

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 combines 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.”

The article continues. On The New York Times’ Bits, Saul Hansell also addresses these issues and quotes the response he received from Facebook’s chief privacy officer:

Another issue that could come up is what sort of consent is required under the law. Facebook, he said, has not explicitly asked users to approve their use in these ads. And the New York State law requires “written consent.”

Mr. McGevran said that while Facebook may have various ways to defend an action, it should follow the practice used by Madison Avenue.

“Standard advertising agencies have routines in place to avoid this problem,” he said. “They always, and I mean always, use stock photos” which are taken of models who consent to be used in ads.

Update: Chris Kelly, the chief privacy officer of Facebook, called to present a number of reasons why he thinks this law doesn’t apply to the new Social Ads. He said Mr. McGeveran’s interpretation of the law was too broad.

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.

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