At the end of 2011, a California court reached a ground-breaking decision. The case was Fraley, et al. v Facebook. The matter at hand was whether or not Facebook’s “sponsored stories” infringed on various state and federal rights, including “rights of publicity.” The court’s ruling is significant because their decision means Facebook users are now legally considered “famous to their Friends” – a declaration with Internet law implications.
What Is Right of Publicity?
Essentially, “right of publicity” regulations forbid entities to use an individual’s name or likeness without said person’s express consent. For example, a company selling widgets can’t slap Bill Gates’ picture on an advertisement without getting permission from the Microsoft founder first. Neither can they put a testimonial from Gates on their marketing material without consent.
Notable exceptions to publicity rights exist. First and foremost, publicity rights are state-based and only 19 currently acknowledge the tort. Moreover, newsworthiness trumps publicity rights; as a result, many defend charges by arguing the given matter was of interest to the public. Legal precedent also says that people seeking public office and criminals forfeit their right to these types of privacy protections when stepping into the limelight willingly or through illegal acts.
How Sponsored Stories Work On Facebook
If you’re one of the millions with a Facebook account, then you’ve probably seen a sponsored story or ten. They’re the advertisements along the sidebar. Sponsored stories are usually coupled with images of Facebook users who’ve “liked” the thing being advertised.
What you may not know is that there’s no way to universally opt-out of seeing sponsored stories (you can close them individually). You also can’t opt-out of appearing in them.
Plaintiffs’ Claims Right of Publicity Claims
The group suing Facebook over “sponsored stories” claim the program violates California’s right of publicity statutes. Claimants are using the fact that the price of a standard Facebook advertisement is significantly less than a sponsored story. In essence, the Plaintiffs are saying, “hey look, We’re ‘famous’ to our friends on Facebook, so Facebook can’t use my likeness without financially compensating me.”
In the lawsuit, in addition to California’s Right of Publicity statute, the petitioners argue Facebook is in violation of California’s Unfair Competition Law, various common law regulations, the Business and Professions Code and doctrines of unjust enrichment.
Facebook’s defense is simple: What people are “liking” on social media sites is newsworthy. And since the Plaintiffs are also claiming their own “fame,” Facebook may very well throw the claimants argument back in their faces for the win.
Will The Internet Change Test Right of Publicity Statutes?
Newsworthiness is the legal axis on which publicity laws balance. As we continue to embrace a gadget-friendly, user-generated existence, the elusive line of what constitutes online privacy will continue to be questioned. Does a person with a one-hit viral video forever give-up their right to privacy? Will every person with a cat blog be considered “famous” or “newsworthy”? Moving forward, courts will be forced to answer the age-old question as to how “newsworthy” is defined in the eyes of the law. Is it anything people are interested in? Or is it something that judges define? Either way, the result could prove problematic if taken to the extreme.
The California court denied Facebook’s request to dismiss the case all together, but they did rule that Facebook users, are, indeed, “famous” to their friends. (So, if you’re one of those people who thinks of yourself as a celebrity, now you can say the US Courts agree.) The judge also threw out the claim that Facebook was “unjustly enriched.”
The implications of this Facebook lawsuit are huge. After all, as Mark Zuckerberg said, “trusted referrals” are the “Holy Grail of Advertising” – and if companies can get the courts to agree that “everyone is famous and therefore newsworthy” the online legal landscape could be forever altered in ways that privacy stalwarts will find alarming.