It’s Not an Unpaid Endorsement, It’s a ‘Social Ad,’ Redux
Facebook’s Social Ads aren’t endorsements, they’re a “representation” of user activity. This according to Chris Kelly, Facebook’s chief privacy officer, who claims the company’s new Social Ads don’t run afoul of privacy law because those who appear in them have already chosen to publicly associate themselves with the brand featured in the advertisement.
Said Kelly: “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.”
Daniel J. Solove, the George Washington University Law School professor who first noted Facebook’s Social Ads might be illegal, finds Kelly’s argument unpersuasive. “Suppose Michael Jordan says on national TV that he likes Wheaties,” Solove posits. “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. … [Social Ads] 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.”
By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, nonexclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof.”
But there’s no language in these terms of service that explicitly grants it the right to use Facebook members’ names and likenesses in a commercial endorsement–unless Facebook is counting on a broooooad interpretation of “reformat” and “translate.”