Category: Technology


Facebook and the Appropriation of Name or Likeness Tort

facebook.jpgA few days ago, I posted about Facebook’s new Social Ads and I argued that they might give rise to an action under the appropriation of name or likeness tort. The most common formulation of the appropriation tort is defined in the Restatement (Second) of Torts § 652C: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”

A related tort, a spin-off of appropriation, is the “right of publicity” which as defined by the Restatement (Third) of the Law of Unfair Competition § 46: “One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purpose of trade is subject to liability for [monetary and injunctive] relief.”

These two torts have sometimes been confused with each other, but the basic difference is that appropriation protects one’s dignitary interests in not desiring to have one’s identity exploited and used for another’s benefit whereas the right of publicity protects a person’s property interest in the commercial value of her identity.

Both torts are potentially applicable to Facebook’s Social Ads.

Over at Digital Daily, John Paczkowski discusses my post and adds:

Now Facebook claims 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,” the company explains. “Facebook users will only see Social Ads to the extent their friends are sharing information with them.” That’s certainly a thoughtful assurance. But it doesn’t exactly address the issue of Facebook appropriating user identities for its own benefit.

At the NYT”s Bits, Saul Hansell discusses the response of Chris Kelly, the chief privacy officer of Facebook:

Mr. Kelly said the advertisements are simply a “representation” of the action users have taken: choosing to link themselves to a product. He added that in many states, consenting to something online is now seen as the equivalent of written consent.

And he argued that it would be difficult for someone used in one of these ads to object because that person had already chosen to publicly identify themselves with the brand doing the advertising.

“We are fairly confident that our operation is well presented to users and that they can make their own choices about whether they want to affiliate with brands that put up Facebook pages,” Mr. Kelly said.

I don’t agree with Kelly’s take on the law. Suppose Michael Jordan says on national TV that he likes Wheaties. Does this allow Wheaties to use his image on its cereal box or in a commercial? The answer is no. The fact that Jordan says he likes Wheaties can be used in a news story; it can be used in a biography of Jordan. But it cannot be used in a commercial advertisement. Comment (c) to the Restatement’s section on appropriation states that “the defendant must have appropriated for his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness.” That’s exactly what’s being done with Social Ads. They are not merely reporting facts (which is ok under appropriation and publicity); instead, they are using the reputation and standing of people to promote commercial products and services.

The fact that a person publicly states that she likes a product is not equivalent to that person’s consent to be used in an advertisement. Otherwise, Coca Cola could snap a photo of a celebrity drinking a can of Coke and then use the photo in its ad campaign without paying the celebrity. That celebrity’s lawyers would be licking their chops if that were to happen.

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The New Facebook Ads — Starring You: Another Privacy Debacle?

facebook.jpgFacebook recently announced a new advertising scheme. Instead of using celebrities to hawk products, it will use . . . you! That’s right, pictures of you and your friends will appear on Facebook ads to make products more enticing to Facebook customers.

As Facebook’s website describes its new “Social Ads” program:

Facebook Social Ads allow your businesses to become part of people’s daily conversations. Ads can be displayed in the left hand Ad Space — visible to users as they browse Facebook to connect with their friends — as well as in the context of News Feed — attached to relevant social stories. The social stories, such as a friend’s becoming a fan of your Facebook Page or a friend’s taking an action on your website, make your ad more interesting and more relevant. Social Ads are placed in highly visible parts of the site without interrupting the user experience on Facebook.

Here’s the sample ad that Facebook includes on its social ad description page:


According to the NY Times:

Facebook wants to put your face on advertisements for products that you like.

Facebook .com is a social networking site that lets people accumulate “friends” and share preferences and play games with them. Each member creates a home page where he or she can post photographs, likes and dislikes and updates about their activities.

Yesterday, in a twist on word-of-mouth marketing, Facebook began selling ads that display people’s profile photos next to commercial messages that are shown to their friends about items they purchased or registered an opinion about.

For example, going forward, a Facebook user who rents a movie on will be asked if he would like to have his movie choice broadcast out to all his friends on Facebook. And those friends would have no choice but to receive that movie message, along with an ad from Blockbuster.

At this point in reading the article, it seems as though participation in the ads (by the person being used in the ad) is fully consensual. But the article goes on to say:

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Cash Is No Longer King

money.jpgAmerican Council of the Blind v. Paulson is scheduled for argument before the D.C. Circuit Court of Appeals on November 19. You probably heard about the case when the district court issued its ruling almost a year ago; it orders the Treasury Department to design and issue paper currency that permits the blind to readily distinguish between different denominations. Plaintiffs invoked the Rehabilitation Act, which aims to ensure that the disabled fully participate in today’s society. They successfully argued that such participation requires that the visually impaired be able to conveniently and confidentially exchange currency in ordinary daily purchases. The district court’s opinion was notable for its silence about the striking changes in the ways that Americans pay for goods and services, as well as its failure to address the staggering ancillary costs that accompany major currency change.

As my colleague Erik Lillquist and I have written about here, currency is just one component of payment systems in the United States, a system that has undergone massive transformation over the last several decades. Of course the American Council for the Blind is correct when it asserts that the blind need to be able to engage in everyday commerce. But this sort of participation rarely necessitates the use of currency, which is increasingly becoming a twentieth-century relic.

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Creative Ways Spammers Get Past CAPTCHA

Many blogs and websites are using CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) systems to help weed out spam comments. Spam comments are sent by bots, and CAPTCHA systems are designed to test whether the comment is from a human or a bot. An example looks like this:


So how are spammers trying to get around it? They are using creative ways to trick humans into solving the CAPTCHA riddles:

In the new scam, an icon of an alluring woman suddenly appears on a Windows computer infected by a virus. After clicking on the icon, the user sees a photo of an attractive woman who vows to take off an article of clothing each time the jumble of figures next to her is entered.

But the woman never fully undresses, and after several passwords are entered the program restarts, possibly enticing unsuspecting users into trying again. . . .

Paul Ferguson, network architect at Trend Micro, speculated that spammers might be using the results to write a program to automatically bypass CAPTCHA systems.

“I have to hand it to them,” Ferguson said, laughing. “The social engineering aspect here is pretty clever.”

Eugenics Problems, Left and Right

Michael Gerson has an interesting editorial in the Washington Post on the Eugenics Temptation–of the left. He quotes the following statement of James Watson on embryo selection:

“If you could find the gene which determines sexuality and a woman decides she doesn’t want a homosexual child, well, let her.” In the same interview, [Watson] said, “We already accept that most couples don’t want a Down child. You would have to be crazy to say you wanted one, because that child has no future.”

Gerson then quotes Yuval Levin on a tension within liberalism that I’ve noted on this blog–between egalitarianism and libertarianism:

Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism. The left . . . .finds itself increasingly disarmed against this challenge, as it grows increasingly uncomfortable with the necessarily transcendent basis of human equality. Part of the case for egalitarianism relies on the assertion of something beyond our animal nature crudely understood, and of a standard science alone will not provide. Defending equality requires tools the left used to possess but seems to have less and less of.

Gerson, whom David Frum “ranks among the most brilliant and most influential presidential speechwriters in decades,” has put his finger on what is probably the most dangerous tension in “left” ideology today. Positional arms races for designer babies dovetail with an ethos that says that choice in reproductive matters must be absolute. As I stated five years ago in an article, egalitarian principles should check this tide.

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Can Antitrust Accommodate Privacy Concerns?

The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google’s standard M.O. amounts to a “deceptive trade practice:”

Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.

One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that “privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service.” I am broadly sympathetic with Swire’s aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.

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The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

Cover-new.jpgI‘m very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on and Barnes & Noble’s website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I’ve been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I’m aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I’ve achieved these goals.

I welcome any feedback. Please let me know what you think of the book, as I’d be very interested in your thoughts.


The Right to Bear Ar–, Or Is It Access the Internet?

scissors2.JPG CNET reports that the government of Burma a.k.a. Myanmar has apparently cut-off Internet and cell phone access as a way to suppress information about the protests occurring there right now. The claim is that an undersea cable is damaged but given the convenience of such a coincidence that claim is being viewed with suspicion. As many know the information that has come through has been via cell phones, blogs, and text messages. Apparently some have even used FaceBook or e-cards to get messages out.

All of these events make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards’s post about the First Amendment gets to this point as well. We must consider what is at stake in today’s context. Put differently, could it be that the individual’s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?

Cross posted at Madisonian

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

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