Five California residents have sued Facebook for allegedly violating their right to control the commercial use of their names with its "Friend Finder" feature, which suggests friends for people based on their email contacts.
"On information and belief, the persons whose names and likenesses are used to promote Friend Finder have not actually consented to use of their names and likenesses to endorse Facebook's Friend Finder service," the plaintiffs allege in a complaint filed Monday in U.S. District Court in San Jose.
They argue that Facebook displays their names and photos in ads to other users in order to convince them to use the Friend Finder. "To promote the use of its Friend Finder service, Facebook has, and continues to, post the names and likenesses of a user's friends on that user's Facebook.com page, using words to the effect that the user's friends 'found friends using the Friend Finder,' and suggesting that the user also 'Give it a try!'"
What's more, the plaintiffs argue, in some cases Facebook is incorrect when it says that particular members used Friend Finder. "A number of users have posted complaints on Facebook.com and other pages, saying that the names, photographs and likenesses of people who never used the service were wrongfully used to promote Friend Finder," the lawsuit alleges.
In addition, the consumers allege that Facebook misappropriates their names and images by sending emails to their contacts who aren't currently using the service. It's not clear what the basis for this allegation is; Facebook, unlike some other social networking sites, isn't known to use members' email addresses to solicit non-members.
Facebook says the case is without merit and that it will fight the lawsuit vigorously.
The plaintiffs argue that Facebook's efforts to convince people to use Friend Finder violate a California law that prohibits companies from using people's names or photos in ads or promotions without their consent.
But Bill McGeveran, a law professor at the University of Minnesota, says that whether Facebook violated California law in this case appears murky. He says it likely depends on several factors, including whether the people who Facebook said used Friend Finder actually did so. If so, he says, "it would be a stretch" to hold Facebook liable for telling members which of their friends used the feature. One reason is that people who actually use Friend Finder have probably consented to Facebook telling others that information.
But if Facebook is spreading false information about who is using Friend Finder, the company might potentially be infringing on people's right to control the commercial use of their images, given that individuals who haven't used the service also haven't consented to promote it.
Even so, McGeveran says, Facebook still wouldn't be liable under California law unless its messages about Friend Finder were deemed ads. The answer to that question "is ambiguous at best," he says, adding, "Facebook certainly would have a decent argument that it is not."
That unresolved question also shows how difficult it is to apply pre-Internet laws to modern media, he says. "A lot of law is written from the perspective of a world where it's really easy to tell what's an ad and what's not," he says. "Online, generally, it's increasingly difficult to tell what's an ad."