In short, the new program allows corporations to set up Facebook pages where visitors who take certain actions can thereby trigger the sending of a “Social Ad” to their network of friends. Here is Facebook’s own explanation:
Facebook’s ad system serves Social Ads that combine social actions from your friends – such as a purchase of a product or review of a restaurant – with an advertiser’s message. This enables advertisers to deliver more tailored and relevant ads to Facebook users that now include information from their friends so they can make more informed decisions.
First of all, as the Wired blog Epicenter notes, one reason this may well backfire is that many will see this as an onslaught of “lots and lots of product-pushing app spam” — even though the ads are nominally triggered by friends.
Not only is it spammy for the recipients, but it’s privacy-invasive for the Facebook user — even for the social-network butterfly who generally shares lots and lots of information. Given its past obliviousness to users’ privacy concerns in the News feeds debacle, this second misstep is really surprising. (They were supposed to have “learned” from last time, when they admitted they “really messed up.”) But the press release unveiling Social Ads contains only this feeble, minimal anticipation of privacy objections:
No personally identifiable information is shared with an advertiser in creating a Social Ad. … Facebook has always empowered users to make choices about sharing their data, and with Facebook Ads we are extending that to marketing messages that appear on the site. Facebook users will only see Social Ads to the extent their friends are sharing information with them.
This misses the point completely, just as they did with News Feeds. It’s nice that they don’t hand over data to advertisers. But as Dan and the New York Times‘ Saul Hansell both point out, users are only asked in general if they want to share information, not if they want their name and picture to be featured in an ad for some product. Just as with News Feeds, consent to share is assumed to remain constant even when the nature of the sharing changes dramatically. And that may not just raise the ire of users once again, it may break the law too. Here’s why:
Privacy law, as it should, treats advertising uses differently from other uses. One of the four common-law privacy torts forbids “appropriation.” Specifically: “One who appropriates to his own use or benefit the name of likeness of another is subject to liability to the other for an invasion of his privacy.” (Restatement (Second) of Torts Section 652C) Even more significantly, several states including New York and California have statutory provisions that are similar. New York’s well-known statute creates both a misdemeanor and a civil cause of action for “[a]ny person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained.”
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. 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:
Reach the right people.
Instead of creating an advertisement and hoping that it reaches the right customers, you can create a Facebook Social Ad and target it precisely to the audience you choose. The ads can also be shown to users whose friends have recently engaged with your Facebook Page or engaged with your website through Facebook Beacon. Social Ads are more likely to influence users when they appear next to a story about a friend’s interaction with your business. [emphasis added]
The famous 1902 case that led directly to adoption of the New York law (and eventually to the tort as well) involved a teenager whose picture was used without her consent on advertisements for flour. Look at the Facebook ads and see if they seem any different to you.
[UPDATE: I should have mentioned in the post the problem that many of these appropriation suits face — damages. Maybe a case isn’t worth bringing if you can’t show you suffered real damages. The girl in the flour lawsuit alleged she needed medical attention for the illness caused by her humiliation. But that doesn’t make it any less illegal…]
[UPDATE 2: Follow-up post here]
[UPDATE 3: Facebook has retreated somewhat in its new advertising plans after getting a lot of heat for them, but it’s unclear whether their improved policy includes Social Ads.]