Bloomberg Businessweek reports that Facebook Inc. is in the midst of a California lawsuit for “using the names and likenesses of children who are members for commercial purposes without permission.”
But it’s unlikely that the plaintiffs, who “seek to represent all minors in California who were members of Facebook within the past three years” and who are asking for unspecified damages for “commercial misappropriation,” have any grounds to stand on. Yes, Facebook does market the names and likenesses of its users to advertisers, a fact the company has never tried to hide. In case you weren’t aware, that means Facebook can use any of the photos or videos you upload to promote themselves or third-party vendors.
By signing up for Facebook, per their Statement of Rights and Responsibilities, you grant them “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.” That license ends when you delete your IP content, “unless your content has been shared with others, and they have not deleted it.” So, yeah, it pretty much never ends.
However, the New York Observer reports that using the name and likeness of a minor for profit without a parent’s permission is against California law, and the parents in the case state that, “At no time does Facebook seek to or obtain the consent of any parent or guardian of the minor child to use or sell the name and likeness of the child for commercial use by Facebook.”
Facebook suggests you can change your privacy settings in order to prevent them from using your photos, but I’m not sure that’s true. A trip through the maze of Facebook settings in an attempt to do so led me to this page, where a popup appeared, saying something about “rumors” surrounding the way Facebook is using member photos. At the top of the page, it says, “Facebook does not give third party applications or advertising networks the right to use your name or picture in adverts. If this is allowed in the future, this setting will govern the usage of your information.” Then beneath that statement, it says, “Allow adverts on platform pages to show my information to…” where you can chose from “only my friends” and “no one.” (I’ve just set my account to no one, and yes, I use Facebook in UK English. It makes me feel fancy.)
Facebook seems to contradict itself left and right and is using purposely confusing language surrounding this issue. On that same page, it reads:
Facebook Adverts are sometimes paired with social actions (e.g. liking a Page) that your friends have taken.
You only appear in Facebook Adverts to your confirmed friends. If a photo is used, it is your Profile photo and not from your photo albums.
Facebook doesn’t sell your information to advertisers.
Facebook actively enforces policies that help protect your experience with third party applications and advertising networks.
Elsewhere, it says:
We’ve run advertisements from our own advertising system for more than a year that let your friends know if you have a direct connection with a product or service, in the same way that your friends learn through your News Feed if you’re connected with another friend or an organization’s Facebook Page.
These social ads always require that you and your friends have taken an express action to indicate your connections with the product or service and that no data be shared with the third party.
Good luck figuring these settings out. In the meantime, don’t upload photos if you don’t want them being used by Facebook, and hold your breath until this case is settled in court.