When asked about its use of minors' images in ads, Facebook
referred Ad Age to its Teens Safety Tips page, and declined to
comment further. While the tips page has many suggestions for how
to stay safe on Facebook, it does not mention parental consent for
any activities. In fact, it doesn't mention advertising at all. It
barely mentions age: "It's against the Facebook Terms to lie about
your name or age."
Some parents see that kind of "social ad" as unauthorized
endorsement. Currently, the social network is facing three lawsuits
in California and New York over its failure to obtain parental
consent for the use of minors' images. The latest suit, initiated
by Brooklyn resident Scott Nastro on behalf of his son Justin,
states that "Facebook, Inc. has regularly and repeatedly used the
names and/or likenesses of plaintiff ... for the commercial purpose
of marketing, advertising, selling and soliciting the purchase of
goods and services."
Facebook requires users to submit their date of birth to set up
an account. The information is not verified with any third-party
source -- such as a credit-card company -- so as long as a user
enters a birth year that is more than 13 years ago, an account will
be created.
To guide parents, the tips page states: "Think of social media
as a get-together at one of your child's friends' houses. You can
give permission for your teen to attend, and even though you won't
be there to monitor their behavior, you trust your teen to have
good judgment around peers and other parents."
"That bothers me," said Bill Streeter, a video blogger from St.
Louis whose 14-year-old son has been on Facebook since he was 11.
Mr. Streeter is not a part of any litigation against Facebook.
"They need to set up a mechanism for getting permission from me to
use my child's likeness for advertising purposes. They're basically
taking users and using them for endorsements of products, and even
if their terms of service says something, I don't see how a minor
child can consent to something like that . Of course it's a
violation of the law."
There are ways users can tweak their profiles for extra privacy,
but it appears to be impossible to rein in the ubiquitous "like."
"Users can prevent their endorsements from being shared with their
friends by limiting who can see their posts through their privacy
settings," the New York complaint states. "There is , however, no
mechanism in place by which a user can prevent their name and
likeness from appearing on a Facebook page if they have 'liked'
it."
The "like" button is the culprit at the center of all the claims
-- when a user "likes" a brand page or a piece of branded content,
that user's name and image is displayed along with the "like"
thumbs-up logo in connection with the content in numerous ways. For
example, if little Johnny likes the Coke page, all of Johnny's
friends see his endorsement of Coke.
Other types of shared ads are RSVPs to advertised events, such
as concerts, sponsored parties and sporting events. These too show
up in Johnny's friends' news feeds on the home page. This is the
core functionality of advertising on the social network -- nothing
is done without it being shared with friends.
This is where the difference between shared personal information
and a paid commercial endorsement start to get blurry. The marketer
benefits from Facebook users' association with its brand, and the
users' profile appears as a social ad with the image of the user.
But should it? Is the backbone of Facebook's social ads strategy
even legal?
"Nobody knows if it's legal," said Linda Goldstein, chair of the
advertising division for law firm Manatt, Phelps & Phillips,
adding that the problem applies to adults as well as minors. "Does
disclosure in the terms of service and use of the service
constitute sufficient consent? The law requires that you have
consent to use a person's name or likeness in advertising, in fact,
it requires written consent. In this case, it's not clear at all."
And because of the children involved, Ms. Goldstein thinks judges
may be more sensitive to the situation. "It's very possible that a
court may rule Facebook didn't have adequate consent," she
said.
And while Facebook said it believes these lawsuits are without
merit and told Ad Age it plans to fight them "vigorously" in court,
the company sees the teenage market as crucial to its success. So
much so, that in joining Google, Skype, Yahoo, Twitter, Zynga and
-- strangely -- eHarmony in opposing a California
children's privacy bill, Facebook wrote that following a newly
stringent children's privacy law would do "significant damage to
California's vibrant Internet commerce industry at a time when the
state can least afford it."
It's possible that even if these suits are resolved in the
plaintiffs' favor, it may be too late to get brands out of our
social-networking lives. "If 15-year-old Suzie is permitted, indeed
encouraged, to show off her new XYZ brand jeans to all her Facebook
friends through functionality provided by Facebook (and possibly
paid for by XYZ), has some new ethical line been crossed?" asks
Terri Seligman, a partner at Frankfurt Kurnit Klein & Selz,
where she specializes in advertising and marketing law. "As
parents, we may worry and fear about […] how much easier it
now is for marketers to reach our teens in an unmediated way, and
that is an issue that deserves careful thought and discussion
within individual families and within society as a whole."
