What You Can Learn From Facebook’s “Sponsored Stories” Settlement

by Michelle Sherman

If you thought that only famous people have a “right of publicity,” think again. Ordinary people can recover damages for someone using their name, voice, photograph or likeness for a commercial purpose. Facebook recently settled a class-action lawsuit filed by Facebook users over an advertising service called “Sponsored Stories.” The lawsuit was based on California’s “right of publicity” statute, Civil Code Section 3344. This settlement is significant for businesses that market themselves online using their customers or the general public as part of their advertising.

A “Sponsored Story” is an advertisement that appears on a member’s Facebook page and consists of another friend’s name, profile picture and an assertion that the person “likes” the advertiser. This promotional advertising may be based on the friend having “liked” or “checked in” with the business through Facebook. In their complaint, plaintiffs allege that Facebook did not get their prior consent or give them an opportunity to opt out of the Sponsored Story ads. Plaintiffs also allege that Facebook told users in its Terms of Use that they could use “privacy settings to limit how [their] name and profile picture may be associated with commercial, sponsored, or related content (such as a brand [they] like)” when this was not the case.

A.  Joe Public And His “Right of Publicity”

The “right of publicity” statute in California prohibits use of another person’s name, voice, signature, photograph, or likeness for the purpose of advertising or selling products, goods or services without the person’s prior consent. If the person is a minor, then the prior consent of his parent or legal guardian is required. This statute does not require bad intent, and sets damages at a minimum of $750 and possibly greater based on actual damages or any profits received from the unauthorized use. Punitive damages may also be recovered, as well as attorneys’ fees. In other words, it can be very costly to use another person’s name, voice or picture for commercial purposes without their permission. The California statute also includes examples of what is not a violation, and these examples are defenses worth considering if your business is ever sued.

States vary on how they recognize a right of publicity, with 19 states including Nevada, New York, Pennsylvania and Washington having right of publicity statutes, and 28 other states recognizing it through their common law. Whatever its form, states recognize that individuals should have the right to be compensated for a commercial exploitation of their name, voice or image, unless they have agreed to give up that right.

In the case of Facebook and its “Sponsored Stories,” it is reported that Facebook agreed to pay $10 million to charity in addition to $10 million in attorneys’ fees to plaintiffs’ counsel. Facebook also reportedly agreed to make changes to its Sponsored Stories, including letting Facebook users decide what content can be used for Sponsored Stories, and to adopt new disclosures.

B.  Three Tips For Posting Pictures

Businesses can take several things from the Facebook settlement:

1. Have your terms of use reviewed to make sure you are giving accurate disclosures on how website posts may be used, and what users can do to opt out;

2. Have a video and photo release that covers your anticipated uses; and

3. Set it up so pictures or videos cannot be uploaded onto your website unless the user clicks an online box to indicate consent with the website Photo/Video Release, the Terms of Use and also Privacy Policy.

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.

© Michelle Sherman, Michelle Sherman | Attorney Advertising

Written by:

Michelle Sherman

Michelle Sherman on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.