Update on the Facebook Case Involving Alleged Misappropriation of User Likenesses

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Last week the blog discussed a case called Fraley v. Facebook Inc., No. C-11-1726 (N.D. Cal. Aug. 26, 2013) which involved allegations that Facebook's "Sponsored Stories" program misappropriated the names and likenesses of users as a means of implying endorsement of a product or service by that user to one of his or her Facebook "friends." The settlement prompted Facebook to announce revisions to its privacy policy, revisions which nonetheless continued to permit it to utilize user photos, names and data in advertising.

Since the announcement of the revisions, multiple parties have objected, including a United States Senator. On Sept. 11, Sen. Edward Markey (D-Mass.) asked the Federal Trade Commission ("FTC") via letter whether the changes instituted by Facebook in response to Fraley violated a separate 2011 Order accusing the social networking giant of engaging in violations of the FTC Act. Specifically, Markey inquired whether the updated policies ran afoul of a previous FTC order settling allegations that Facebook engaged in deceptive acts regarding its privacy policies in violation of Section 5 of the FTC Act. Markey's letter noted that the new policies differed from its predecessor insofar as the terms "would automatically cede to Facebook the right to use" information absent express revocation by the user, whereas the old policy afforded users the explicit right to control how their information was utilized for advertising purposes. Markey argued that the new policies thus may fail to comport with the 2011 Order which required Facebook to obtain "affirmative express consent" prior to utilization of user information for the purposes of advertising.

Whether Markey's letter, or the other objections emanating from privacy and consumer rights groups, gain traction at the FTC or other entities with jurisdiction over online dissemination of third-party information remains to be seen. That said, there does not appear to be any amicable end in sight in the battle between entities seeking to monetize personal information and those who ostensibly engage in their oversight.

- See more at: http://www.hklaw.com/DigitalTechBlog/Update-on-the-Facebook-Case-Involving-Alleged-Misappropriation-of-User-Likenesses-09-24-2013/#sthash.r9B3GSER.dpuf

Last week the blog discussed a case called Fraley v. Facebook Inc., No. C-11-1726 (N.D. Cal. Aug. 26, 2013) which involved allegations that Facebook's "Sponsored Stories" program misappropriated the names and likenesses of users as a means of implying endorsement of a product or service by that user to one of his or her Facebook "friends." The settlement prompted Facebook to announce revisions to its privacy policy, revisions which nonetheless continued to permit it to utilize user photos, names and data in advertising.

Since the announcement of the revisions, multiple parties have objected, including a United States Senator. On Sept. 11, Sen. Edward Markey (D-Mass.) asked the Federal Trade Commission ("FTC") via letter whether the changes instituted by Facebook in response to Fraley violated a separate 2011 Order accusing the social networking giant of engaging in violations of the FTC Act. Specifically, Markey inquired whether the updated policies ran afoul of a previous FTC order settling allegations that Facebook engaged in deceptive acts regarding its privacy policies in violation of Section 5 of the FTC Act. Markey's letter noted that the new policies differed from its predecessor insofar as the terms "would automatically cede to Facebook the right to use" information absent express revocation by the user, whereas the old policy afforded users the explicit right to control how their information was utilized for advertising purposes. Markey argued that the new policies thus may fail to comport with the 2011 Order which required Facebook to obtain "affirmative express consent" prior to utilization of user information for the purposes of advertising.

Whether Markey's letter, or the other objections emanating from privacy and consumer rights groups, gain traction at the FTC or other entities with jurisdiction over online dissemination of third-party information remains to be seen. That said, there does not appear to be any amicable end in sight in the battle between entities seeking to monetize personal information and those who ostensibly engage in their oversight.

Topics:  Endorsements, Facebook, Misappropriation, Right of Publicity

Published In: Antitrust & Trade Regulation Updates, General Business Updates, Communications & Media Updates, Consumer Protection Updates, Privacy Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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