December 19, 2011, 1:59 PM — The artist/writer Nick Currie (aka Momus) once said, In the future, everyone will be famous for 15 people. Spend too much time on social media, and you can certainly delude yourself into thinking you’re a star. But does that give Facebook the right to use your face in its ads? A California court will soon get to decide that.
In March 2011, a group of California residents launched a class action suit against Facebook over its use of their names and photos in “Sponsored Stories” and other types of social ads. Last week, a US District judge in California refused Facebook’s attempts to dismiss the suit, ruling that the lawsuit over Facebook’s use of its members “Likes” and likenesses could proceed.
I’ve written about these types of ads in the past. If you click Like on a product or service advertised on Facebook, Facebook can use your face to broadcast that recommendation to your FB posse (and collect money from advertisers along the way). Like the Jolly Green Giant or the Pillsbury Doughboy, you could find yourself an uncompensated spokesperson for that product. And that may just violate California’s Right of Publicity Statute, which prohibits a person’s name or likeness to be used in an ad without their consent.
That’s not the strange part. The strange bit is Facebook’s defense. Instead of arguing that it obtained members’ consent automatically when they agreed to the FB terms of service, Facebook is relying on exemptions carved out in that statute for “newsworthiness.”
Just as public figures like Lindsay Lohan or Kate Middleton enjoy a lesser right to privacy by the fact of their celebrity, Facebook is arguing that you too are famous – if only to your Facebook friends – and thus exempted from protection under that statute.
Gee I feel more famous already.
I am not a lawyer, thank god, so perhaps there is some nuance to California’s law that forces Facebook to pursue what sounds like a ludicrous line of defense in that case. But it would seem to me that if a court buys that argument, it’s really buying the notion that the entire law is bankrupt, and that advertisers (and intermediaries like Facebook) should be able to use our identities at will for their own commercial ends.