Debbie Douez clicked on Like on the Tough Mudders company’s online presence because she wanted to get some information on one of their offerings and it was the only way to do so. Unfortunately, when she saw her name and photo was being used by Facebook on their Sponsored Stories as an “advertising endorsement” for that company she was aghast. Her privacy settings were on as restricted as possible, but she was in the ad anyway. Instead of just shaking her head about the non-existent state of social media privacy she launched a class action suit authorized by the Supreme Court of her Canadian province of British Columbia. This case amply demonstrates that there are serious ramifications for any online marketers’ actions in the social media world.
B.C.’s Privacy Act prohibits use of name & portrait without consent
If at first this seems like a big ado about not much, that’s not necessarily the case. It seems that in British Columbia’s Privacy Act it is clearly stated that:
…it is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising… unless that person consents to the use for that purpose.
Facebook is facing paying a million citizens several hundred dollars each
Douez is making the case that when she clicked on that Tough Mudders Like button she was not informed that her name and portrait was going to be used to advertise the site to her friends on Facebook. Facing the possibility of paying about a million British Columbians several hundred dollars each, Facebook fired back that since Douez was using Facebook, she had agreed (as with all other users) to the site’s “Statement of Rights and Responsibilities” which states that the user’s “names or likenesses” can be used in the Sponsored Stories. Douez claims that although that wording is that Statement now, it was not there when she clicked on that now-infamous Like.
You can’t agree to a contract that allows you to legally rob a bank
Regardless of what the wording was at the time, it seems that Facebook is on very shaky legal ground here based on the legal precept that no private company can create a contract which violates the law. This legal concept holds that just like you can’t legally agree to a contract that gives you the right to rob a bank or deal narcotics while avoiding prosecution, any private company’s contractual agreement with any citizen cannot violate the law in their jurisdiction.
Douez is not subject to the law in a foreign country
Facebook is even arguing the jurisdiction part, claiming that its terms state that the users agree to actions in California courts only. That is yet another part of Facebook’s defense that the British Columbia Supreme Court handily shot down. The legal justification here is that just because pot might be legal in Colorado or Washington State, a private company can’t create a binding contract that legally allows the customer to smoke it in a state where it’s illegal to do so. Douez is a British Columbian and is subject to the prevailing law in her province, not in a state in a foreign country.
Online marketers must be extremely cautious
The authorization of the lawsuit by the Supreme Court of British Columbia is 74 pages long and a precursory reading shows that, essentially, Facebook likely doesn’t have a hoodie’s chance at a formal wedding of fending off the legal attack. If a Facebook user is in a state or province which has a Privacy Act with terms similar to British Columbia’s (and apparently most of them do have similar legislation) any online marketer has to be extremely cautious before claiming that any one of them is an endorser for their public offerings.
As social media marketers we have all succumbed to the siren song of the impact of endorsers. While it is true that there are few more powerful promotional campaigns than the ones based on individual endorsers, the issue of whether we can use those endorsers without their specific permission remains a legal minefield.
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