This article first appeared in Cyberlaw Currents, a Frankfurt Kurnit legal blog.
Promotions Guidelines
Facebook has once again revised its Promotions Guidelines. Effective May 11, 2011, the revisions place further restrictions on advertiser use of Facebook intellectual property: advertisers are now permitted to use Facebook's name and trademarks only "in connection with a promotion or to mention Facebook in the rules or materials relating to a promotion" to fulfill the obligations placed on the advertiser by Facebook in its Promotion Guidelines under Section 2. This appears to mean that advertisers can only use the Facebook name and trademarks to release Facebook from any liability associated with the promotion, to acknowledge that Facebook does not endorse or sponsor the promotion, and to inform the entrant that her personal information is being provided to the advertiser and not to Facebook. Facebook now also requires that promotions administered on Facebook be administered within Apps on Facebook.com, either on a Canvas Page or an application on a Page Tab. Finally, in addition to the long-standing prohibitions on the use of Facebook features or functionality as an entry mechanism (e.g., advertisers cannot require an entrant to update her status to receive an entry or post a photo to her wall to enter), the new guidelines prohibit advertisers from using the "like" functionality as a voting mechanism.
Facebook Messages Subject to CAN-SPAM
In other Facebook news, a district court in California recently ruled that in-platform messages sent by an online marketer through Facebook constituted "commercial electronic mail messages," subject to CAN-SPAM (Facebook, Inc. v. MaxBounty, Inc., Case no. CV-10-4712-JF (ND CA)). In so finding, the court declined to dismiss the complaint against MaxBounty, which had argued that its Facebook messages were not subject to the requirements of CAN-SPAM. Such requirements include, among other things, scrubbing the list of would-be recipients of the message against the marketer's do–not-email list and providing a functioning opt-out mechanism. While it seems unlikely that Facebook would pursue a private right of action under CAN-SPAM against a marketer that complied with Facebook's own terms of use for in-platform messaging, the practical implications of this case for marketer social networking communications are potentially
Facebook Again Facing Lawsuit for Use of Minors' Names and Likenesses
A class consisting of minors in New York has filed a class action against Facebook alleging that the social network has used minor members' names, likenesses, and preferences in violation of New York Civil Rights Law Section 50. This law requires that companies obtain written consent before using the name, portrait or picture of any living person in advertising (or the consent of a parent or legal guardian if such person is a minor). The lawsuit comes on the heels of a similar action on behalf of California minors.
Like the plaintiffs in the California action, the New York plaintiffs claim that Facebook commercially capitalizes on its "complete access to users' profiles as well as the information generated through users' network activities" and its "unique[] ab[ility] to offer advertisers the ability to direct their ads to very specific demographics." Specifically, the plaintiffs point to Facebook's "Social Ads," which display for a user the names and profile photos of that user's Facebook Friends who have interacted with the ad or the advertiser's Facebook page. Additionally, when a user "Likes" particular goods or services, that "Like" is communicated to the user's Friends on their individual Facebook homepages. The plaintiffs allege that these "apparent endorsement[s]" by Facebook users (who are recognizable to their Facebook Friends) generate higher click-throughs and thus greater revenue to the advertiser and, in turn, Facebook. The plaintiffs further contend that such commercial uses by Facebook of minors' names and likenesses is without the required consent of their parents or guardians and that there is no mechanism on the site whereby a user or his or her parents could prevent Facebook from engaging in such commercial uses. To read a copy of the complaint, click here.
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