Facebook Advertising Violates New York Law: The Real Issue May Be Underage Users
Don’t be surprised if your Facebook friend begins soliciting products and services to you. However, the company’s clever social advertising model — whereby the user’s face is linked to the advertising — may, in fact, be illegal in New York.
According to an article by Saul Hansell in the New York Times, Facebook’s social advertising platform may violate New York’s privacy law. This statute (NY CLS Civ R 51) requires prior written consent before a person’s name, portrait, picture, or voice can be used for advertising or trade purposes in New York.
Those with standing can sue for an injunction, as well as damages. Case law holds that while written consent is required as per the statute, the actions of the plaintiff would be a consideration. Oral or implied consent, while not an absolute defense, could nevertheless be used by the defendant to mitigate damages.
In the Facebook case, where the user has to sign up for his or her likeness to be associated with the product or service at inception, it would seem as easily as they opt-in, it would be assumed they could just as easily opt-out. According to Portfolio.com, however, Facebook’s 22-year-old CEO Mark Zuckerberg said, “There’s no opting out of advertising.”
But what of Facebook’s underage cliental? Individuals can argue back and forth about whether Facebook’s opt-in procedure constitutes permission (written or implied). However, the real issue Facebook should review concerns the underage community it serves. which according to its Terms of Use are those between 13-18 currently in high school or college. In that case, pursuant to NY CLS Civ R 50, Facebook could be found guilty of a misdemeanor:
bq. “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
Even if it could be shown a minor opted-in to the social advertising, the contract entered into with a minor typically cannot be enforced by the other party. Therefore, unless Facebook has a mechanism where the underage user’s parent or guardian agrees to opt-in as well, and that opt-in procedure is considered written consent, the company may well open itself up to potential New York lawsuits with a spectrum of attached liabilities.
Whether Facebook views potential face-offs as viable is anyone’s guess.
Read more
- Facebook Ads (Facebook Blog)
- Facebook Unveils New Advertising Program (MediaPost)
- Official: Facebook Poised to ’Take Over The World (Portfolio.com)
- Are Facebook’s Social Ads Illegal? (New York Times)
- NY CLS Civ R 50, 51
Indian Music Label Sues YouTube Claiming Copyright Infringement
Maybe I should call this column “Who’s Suing YouTube Now?” This week, Super Cassettes, a music label based in India, filed suit against YouTube and its parent company Google claiming it violated copyright laws. Super Cassettes’s lawyer claims they asked YouTube to remove the infringing material on several occasions but the company never did.
Google did not comment on this latest allegation. However, in the past it has been critical of India’s Information Technology Act 2000. The act creates liability for intermediaries such as ISPs, search engines, hosting companies and their ilk for infringing acts of their users.
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NOTEWORTHY:
I’m jealous! Mark Sullivan from PC World was one of the lucky ones to get private beta access to Hulu, the new Internet video venture from NBC/Universal and Fox. Sullivan calls the project “among the best attempts I’ve seen yet at streaming video at high quality over the public Internet.”
See also:
- First Look: Hulu Video Service (PC World)
For the first time in its 62 history, a “Presidential Medal of Freedom,”http://www.medaloffreedom.com/ one of this country’s two highest civilian honors, has been awarded to a blogger. Okay, while Gary Becker, a 1992 Nobel laureate in economics, certainly is not be solely a blogger, the Financial Times points out if for nothing else, Becker is surely “the most distinguished blogger in the world.” Becker blogs with pal, US Court of Appeals, Seventh Circuit Judge Richard Posner.
See also:
- Finally, Blogging is Blessed on High (Financial Times)
- The Becker-Posner Blog (yes, that’s its name)
UPDATES:
Prince Cracks Down on Fan Sites: In an update to my Oct. 7, 2007 column (Gov’t Eyes Letting Telecoms “Off the Hook;” RIAA Wins Big; Prince’s Infringement Stance), Prince’s lawyers have pressured numerous web sites run by fans to remove copyrighted images of the Purple One, taken during his London concerts. CNN reported his attorneys sent a letter to the site owners asking them for “substantive details of the means by which you propose to compensate our clients [Paisley Park Entertainment Group, NPG Records and AEG for damages]” for the use of the images. Soon after, AEG, the promoter of Prince’s London gigs, issued a press release assuring fans that Prince is not out to sue fans and that he intends to offer some downloadable images for fan site use.
On Friday, CNET reported that Prince is going after The Pirate Bay, a BitTorrent indexing site. One might be wont to ask, if The Pirate Bay finds a need to collect its allegations of wrongdoing on a separate web page called Legal Threats Against Pirate Bay, maybe a best practices meeting might be in order?
Read more
- Prince Takes Steps to Protect Copyrights (AP)
- Prince vs. Fans (CNN)
- Prince to Sue The Pirate Bay (CNET)
By the way, I’m Digging Live Writer: This is the first time I’m using Microsoft’s new Windows Live Writer. Not only does it post to my blogs (and do spell check, insert pictures and video, et al), but I can actually write right on the blog page (simulated, of course). How cool is that? Very.
And Microsoft has added a cleansing filter to eliminate the notorious “garbage code” that has plagued Word-to-Internet postings for years. Right now my only complaint is I have to manually code line inserts, but I can live with that small task. Live Writer gets a good review from me. If that changes in the future, I will let you know.
Windows Live Writer is part of a new suite of free downloads. Check them all out at http://www.windowslive.com.
