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Should Facebook 'Likes' Count As Commercial Endorsements? 189

Slashdot contributor Bennett Haselton writes: "Facebook settled out of court over displaying ads that told you which of your friends had 'liked' a product or service, and another lawsuit is currently pending over the use of minors' pictures specifically in similar ads. (Not to be confused with another recently filed lawsuit alleging that Facebook converts private messages into public 'likes'.) Google+ tried to limit its liability by only showing the faces of users over 18 when showing which friends 'like' a page. I'm all for more privacy for social networking users, and if it's true that Facebook has been silently marking users as publicly 'liking' a page because they mentioned the page in a private message, the plaintiff's lawyers ought to clean them out for that one. But in cases where you willingly and knowingly 'liked' a page, Facebook and Google+ ought to be able to tell that to your friends in advertisements, without being sued for it." Read on for the rest of Bennett's thoughts.

The rationale for the case against the Facebook 'your-friends-have-liked-this' ads, seems to be that Facebook is violating laws and social norms against using someone's image in a commercial endorsement without their permission. But I can only think of two reasons for why those laws and social norms exist, and neither of those reasons would seem to apply to Facebook 'likes.' The two main reasons that come to mind are (1) loss of control over one's image, and (2) the creation of the false impression that the company has paid for a product endorsement.

Consider first the issue of the loss of control over your image. You would probably be annoyed if a company took a picture of your face and started featuring it prominently in their advertisements without your permission. (If you had taken the photo yourself, then the company would of course also be on the hook for copyright infringement, but let's assume that the company had one of their photographers take the photo so that they owned the copyright, and the only issue is the unfair use of your likeness.) At that point, you have no control over the dissemination of the picture. Even assuming that you like the way you look in the picture, you might find it creepy to think of thousands of strangers looking at the photo of you (or your kids). That would be an argument in favor of requiring companies to get people's permission before using their likenesses in advertisements.

But that argument would not apply to an ad in your Facebook feed which shows you the profile pictures of friends who have 'liked' a page. Those profile pictures were uploaded by those users expressly so that their Facebook friends could see them. At any time, they can select a different 'profile picture', or remove any profile pictures that they no longer wish to be visible to friends. (Facebook took a lot of well-deserved criticism for exposing users' profiles and pictures to non-friends, as well, even for users who have disabled that setting — but that's a separate issue. The "ads" in question only display your pictures to your friends.)

Second, consider the issue of creating the false impression of a paid product endorsement. With traditional advertisements, it might seem strange that people respond to ads featuring a nice, attractive-but-not-in-your-face-attractive person using a product, even if the photo doesn't seem to directly convey any information about the product itself. What the photo really conveys is that the company behind the product has resources — to hire models, photographers, lighting crews, photo editors, and of course to buy the space to display the ad. This ostentatious display of "resources" might reassure a customer that the company similarly has the resources to test their product thoroughly, to replace a product that breaks, or to honor their returns policy. But it only works if the user believes that the company actually did spend money on all of those things to create the ad.

This is even more true of ads featuring paid celebrities. Steven Landsburg, in a passage from his book The Armchair Economist, writes:

"[I]t is also common to see products endorsed by celebrities who have no particular expertise, and who are obviously being paid for their testimony. Well-known actresses endorse health clubs; ex-politicians endorse luggage; in Massachusetts recently, a Nobel prize-winning economist endorsed automobile tires. People respond to these ads, and sales increase. What useful information can there be in knowing that the manufacturer of your overnight bag paid a six-figure fee to feature a famous person in a television commercial? How can it be rational to choose your luggage on this basis?

Let me suggest an answer. [...] Hiring a celebrity to endorse your product is like posting a bond. The firm makes a substantial investment up front and reaps returns over a long period of time. A firm that expects to disappear in a year won't make such an investment. When I see a celebrity endorsement, I know that the firm has enough confidence in the quality of its product to expect to be around awhile.

(The full argument is in the text of The Armchair Economist on Scribd, although you've probably got the idea.)

However, none of this applies to your friend's profile picture appearing in an ad in your Facebook feed. No rational person would think that meant that the friend had been paid for the endorsement, so the ad doesn't falsely convey anything about the company's "resources." (All you really know is that the company paid some money to buy the ad — but, unlike a print ad that appears in a national magazine, you have no idea how much they spent to promote their brand on Facebook just because you happen to be seeing the promotion.) The valuable information conveyed in the ad is just what it seems — at least one of your friends thought the company or product was cool enough to 'like' it.

(This argument does leave an interesting case uncovered. What if a real recognizable celebrity 'liked' a page on Facebook, and that company paid for a flurry of ads in people's Facebook feeds prominently featuring the celebrity's likeness, truthfully claiming that the celebrity liked their product, but without paying the celebrity? I don't happen to know of any real-life case where a company found out that a celebrity actually used their product, and then started advertising the fact that their product was used by that celebrity without actually paying the celebrity, using the defense that all they were doing was stating a true fact. (Tell me in the comments if you know if that's happened.) However, Facebook seems to have ducked that issue for now, because virtually no actual celebrities have regular user profiles on Facebook; they have official fan pages, clearly demarcating the line between "them" and "us." So the sponsored ads are not likely to include a real celebrity's likeness any time soon.)

Fundamentally, if an 'ad' appears in your Facebook feed telling you that some of your friends 'liked' a page, all that ad is doing is stating a true fact, something that Facebook ought to be allowed to do under the First Amendment. I don't agree with Mitt Romney that "corporations are people too, my friend," but they do have First Amendment rights, which I would argue should include the right to tell you if friends of yours have publicly indicated that they like a product or service.

One currently pending lawsuit against Facebook makes much of the fact that Facebook's ads were displaying the profile pictures of minors, and that California law requires the permission of a minor's parents to use their likeness in an ad. But when that law was drafted, the authors probably had in mind the kind of traditional advertisements that raise the two concerns above — where (1) the minor and their family lose control over the dissemination of their image, and (2) the use of the likeness creates the false impression of a paid advertisement. It's not obvious that they would have considered the law to apply to a note in your Facebook feed telling you that your friend had liked a page. To the extent that the law could be interpreted to prohibit those kinds of notifications, that's arguably a violation of Facebook's First Amendment rights.

Of course, I've made this argument by assuming that the two reasons listed at the top are the only reasons that a company should be required to get people's permission before using their likeness in advertisements, and that if those reasons don't apply to Facebook 'likes,' then the permission requirement should not apply. But there may be other reasons besides those two, reasons that would also apply to ads listing Facebook 'likes,' and then that would invalidate the argument. But in the meantime, even though I don't use Facebook, if I did, I'd tentatively be fine with Facebook showing my profile picture in 'ads' to friends listing me as one of a group of people who had 'liked' a particular page.

On the other hand, if Facebook is really scanning your private messages for mentions of a particular page, and then automatically indicating on your profile that you 'like' that page, then yes, that means that any 'likes' acquired in that manner were not intended by the user to be public, and yes, that changes everything.

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Should Facebook 'Likes' Count As Commercial Endorsements?

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  • Fuck off, Bennett (Score:5, Insightful)

    by Anonymous Coward on Tuesday January 07, 2014 @03:09PM (#45890279)

    Another Bennett wall of text. Does anyone actually read these?

    I'm surprised he didn't insert his whining about being rightfully pegged as a spammer.

  • Ummmm .... (Score:5, Insightful)

    by gstoddart ( 321705 ) on Tuesday January 07, 2014 @03:10PM (#45890291) Homepage

    (2) the creation of the false impression that the company has paid for a product endorsement.

    They have paid for a product endorsement. They just haven't paid you.

    But, joking aside, I believe it should be illegal to use my name or image to endorse a product without me being explicitly asked, and compensated. Anything else is a fraudulent use of my name.

    Oh, and Mark Zuckerberg is a douchebag.

  • by furbyhater ( 969847 ) on Tuesday January 07, 2014 @03:14PM (#45890343)
    Stop using facebook. Now.
  • by joe_frisch ( 1366229 ) on Tuesday January 07, 2014 @03:17PM (#45890393)

    FB uses the tern "friend" to describe someone with whom you wish to have some level of communication, not someone who fits the conventional definition of "friend". The action of "like" is used in FB to indicate an acknowledgement of some post, not necessarily approval - I've seen people "like" posts about horrific events.

    To further confuse things, companies will collect "inappropriate" likes. Some vendor vendor posts a picture of a cute kitten. People "like" the picture in the hopes that their friends will see it as well. That "like" in no way indicates that they actually recommend the (often completely unrelated) product. Sometimes it isn't even obvious to users that they are endorsing a commercial product.

    This leads to a rather confusing landscape where people (who are not actually friends), are listed as "liking" a product that they do not in any way actually endorse. Whether advertising that "your friends like this product" is deceptive or not depends on whether you are using the conventional or FB definitions of "friends" and "like".

    Personally I completely ignore this sort of endorsement because I understand what it really means (which is nothing). I make an effort to avoid "liking" any commercial links to avoid giving the impression that I endorse their products.

  • Re:Ummmm .... (Score:4, Insightful)

    by gstoddart ( 321705 ) on Tuesday January 07, 2014 @03:25PM (#45890513) Homepage

    You know, using my name or likeness without my permission for any reason shouldn't require trademark.

    It should be illegal to begin with -- because if you never asked me, you should have no bloody expectation you can legally do it.

    I, for instance, could not use Zuckerfuck's likeness to endorse adult diapers with built-in butt plugs.

    But somehow I'm expected to believe his EULA grants him the right to do this? I think not.

  • PROTIP FFS (Score:3, Insightful)

    by Anonymous Coward on Tuesday January 07, 2014 @03:31PM (#45890597)

    You can't be on social media and still claim to be a privacy advocate. One or the other. No one understands the meanings of these words anymore. Social media is just that: SOCIAL. If you want privacy, then you should probably not be on facebook, you blithering idiot.

  • Re:Ummmm .... (Score:5, Insightful)

    by rjstanford ( 69735 ) on Tuesday January 07, 2014 @03:34PM (#45890637) Homepage Journal

    Then why on earth did you "Like" the product, if you didn't want your friends to see that you "Liked" the product? Same comment but louder if you reviewed it.

    I agree with the sentiment - if they're pretending you "Liked" something when you just mentioned it, that's bad. But the whole point - indeed, the only point - of giving something a "Like" is to share your opinion with others. Don't pretend to be surprised when the sharing happens.

  • Re:Ummmm .... (Score:5, Insightful)

    by TheCarp ( 96830 ) < minus pi> on Tuesday January 07, 2014 @03:58PM (#45890885) Homepage

    Except like doesn't always mean like.

    You have to like a group or product just to be able to post on the page about it and be part of the discussion. So, if I see something I don't like, if I see a product that is a scam or that didn't work as advertised, I can't even post in a group discussing it unless i hit "like"

    In short, they took other concepts like "subscribe", conflated them into their "like" button and now are trying to claim that because you hit the button called "like" that you actually like whatever it is.

    This would be a little like me replacing my doorbell with a button that says "I love surprise anal sex", and then publishing pictures of everyone who comes to visit me with the slogan "These people love surprise anal sex". Does that really seem legit?

  • Re:Ummmm .... (Score:5, Insightful)

    by Baloroth ( 2370816 ) on Tuesday January 07, 2014 @04:17PM (#45891099)

    But the whole point - indeed, the only point - of giving something a "Like" is to share your opinion with others. Don't pretend to be surprised when the sharing happens.

    No, that's an interpretation, but it isn't a correct one.

    If I like something on Facebook, it's because I would like to see their future updates. Period.

    Seriously? That's how you interpret clicking the "like" button in a social network which is specifically and from the very beginning designed to share stuff with other people? And you think he has the wrong interpretation?

    Well, that's certainly an... interesting position to take.

  • by lgw ( 121541 ) on Tuesday January 07, 2014 @04:54PM (#45891485) Journal

    Why the heck are you still allowed to post on /.? Do you have juicy pictures of someone at Dice? Are you someone's nephew?

    We already know your views on every topic: whatever gives the powerful central authority even more power is what BH wants. You sure waste a lot of words in saying that, and very few here love totalitarianism the way you do, so how do you manage to twist Dice's arm?

    Damn, and this is just one more comment on a BH thread. I should be ashamed for doing anything but ignoring it, but I just couldn't help myself.

  • by Hatta ( 162192 ) on Tuesday January 07, 2014 @04:58PM (#45891519) Journal

    Where's the "onoitsbennett" tag?

  • by Anonymous Coward on Tuesday January 07, 2014 @05:14PM (#45891697)

    Fuck you, Bennett. You still haven't learned any editorial skills whatsoever, and you primarily need to learn that you should make your fucking point and then stop writing. You write too much, with too little substance, and with apparent lack of understanding of almost everything you write an opinion piece about. Go back to doing math or something else that you're good at, because you fucking SUCK at writing.

    Maybe you could write about the real reasons behind your resignation from Microsoft instead of just a copy of your personnel file - that would actually be a piece that people might want to read.

  • by Anonymous Coward on Tuesday January 07, 2014 @05:30PM (#45891861)

    Before you submit a story, please spend more time condensing. People would be more receptive if you were articulate and to the point.

  • by ottothecow ( 600101 ) on Tuesday January 07, 2014 @06:19PM (#45892381) Homepage
    Does this moron get paid to post here or something?

    I always have enough Karma that I get the "disable advertising" checkbox, but I rarely bother checking it since I don't particularly mind them and slashdot has got to pay the bills somehow...

    Today I am clicking it. I am clicking it in protest of Bennett's continued ability to submit walls of moronic text to the front page. I am clicking it with hopes that I am depriving Dice of a minuscule amount or revenue that might help them consider whether they should continue publishing this swill.

  • by icebike ( 68054 ) on Tuesday January 07, 2014 @06:32PM (#45892501)

    I always have enough Karma that I get the "disable advertising" checkbox,

    I would trade that checkbox for a Disable Bennett checkbox!

    Why can't he post a blog, then hype that in a self aggrandizing submission like all the other click-bait authors?

  • Re:Ummmm .... (Score:5, Insightful)

    by icebike ( 68054 ) on Tuesday January 07, 2014 @06:35PM (#45892539)

    It should be illegal to begin with -- because if you never asked me, you should have no bloody expectation you can legally do it.

    You joined Facebook, and you lost that argument in the same single act.

If you think nobody cares if you're alive, try missing a couple of car payments. -- Earl Wilson