Facebook Forced to Address Legal Gray Area of Kids and Advertising
A big part of Facebook's advertising strategy is to turn user "likes" into advertisements that show the user's name and image. And that strategy is a major reason brands love Facebook so much -- if a user "likes" a brand page, Facebook will spread that endorsement around the network as far as the user allows it to go. But what if that user endorsing a brand happens to be a child?
A recent Consumer Reports survey found that as many as 7.5 million Facebook users in the U.S. are under 13, a violation of Facebook's user policies. But an additional 14.4 million are between the ages of 13 and 17, younger than the age of legal consent in most states. Should the images of these minors be used in advertising?
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."