Is it legal for Facebook to use your photos, likes and status updates in ads?

Posted at 5:40 PM, Dec 20, 2012

If you’re a Facebook user, you probably know that becoming a fan of your favorite brands and retailers can pay off. Once you’ve “liked” these companies, you might see special offers, sale notices and other insider information that appears only on Facebook. In fact, you might even choose to comment on these updates or share them with your friends.

But what you might not expect to see is your name, as well as your “likes,” photos and comments appearing in ads for the companies you’ve expressed interest in. However, your Facebook friends may see your name and picture in a so-called “sponsored story.” These paid advertisements are shown to your connections and tell that you have “liked” a company.

Now, Instagram, who is owned by Facebook, recently announced their terms of use update – essentially giving them broader rights to use its members' photos in advertisements.

However, this practice may be in violation of right to publicity statues, often referred to as personality rights. The ‘right of publicity’ is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity.

Right of publicity laws vary from state to state, but typically were enacted to protect people from having their names or photos used for commercial purposes without their express permission.

States with right to privacy statues include California, Florida, Illinois, Massachusetts, New York, Ohio, Pennsylvania, Texas and Virginia. Georgia does not have a specific statue, but instead has a common law right of publicity that has been developed by the court system, according to the Citizen Media Law Project.

Have any cases been filed against Facebook regarding its “sponsored stories”?

In a lawsuit filed in 2011, Facebook was sued in California, with a claim that the social media site’s sponsored ads violated a state law.

The case claimed that users’ “likes” were shown in ads without giving them payment or a way to choose not to take part in the promotions, reported the Chicago Tribune.

The class-action lawsuit against Facebook’s “Sponsored Stories” ads has not yet been settled, though the company has proposed awarding users with a $10 payment that would come from a $20 million settlement fund.

When is it OK to use a person’s name or likeness without their permission?

Right of publicity laws protect people, both celebrities and everyday citizens, from having their names or photos used for commercial purposes. However, using a person’s name or photo for news reports is not a violation of these laws, according to the Digital Journalist’s Legal Guide, which was produced by the Reporters Committee for Freedom of the Press.

In fact, Facebook defended its “sponsored stories” as “newsworthy” in the California lawsuit, saying that people’s brand preferences should be considered “news” to their Facebook friends.

So, what can Facebook do with the content you post on the site?

Facebook’s Terms of Use include the following:

“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

So, by using Facebook, you are allowing the company to use your words, “likes” and photos as the company sees fit.

How can you keep Facebook from showing your “likes” to others?

With “like” buttons now appearing on websites all over the Internet, it’s easier than ever to share your brand preferences on Facebook. But remember that the company has deemed your “likes” public information, says Webtrends.

The first step is to use caution when clicking “like.” You’ll also want to be sure to set your account to the most private setting, which is “friends.”

To do this, open your Facebook page and look your name in the top right corner. You’ll see a tiny arrow beside the “home” link. Click on the arrow, choose “privacy settings” and then choose “friends.” Your status updates and likes will appear only in friends’ feeds. Still, Facebook itself warns that “the people you share with can always share your information with others.”

And remember that your Facebook profile photo, Timeline cover photo and name remain accessible to everyone on the Internet, according to Consumer Reports. If you don’t want people to see your photo in web searches, Consumer Reports recommends using something other than a mug-shot style photo of your face for your Facebook account.

The only way to opt-out of both Facebook “sponsored stories” and Instagram is to simply not use them.