New revisions to Facebook's terms, slated to take effect tomorrow, could make it more difficult for dissatisfied pay-per-click advertisers to sue the company.
The company's proposed new "Statement of Rights and Responsibilities" includes this language in a section aimed at advertisers: "We cannot control how clicks are generated on your ads. We have systems that attempt to detect and filter certain click activity, but we are not responsible for click fraud, technological issues, or other potentially invalid click activity that may affect the cost of running ads."
The current disclaimer reads: "We cannot control how people interact with your ads, and are not responsible for click fraud or other improper actions that affect the cost of running ads. We do, however, have systems that attempt to detect and filter certain suspicious activity."
Facebook clearly hopes that the new language will unambiguously stave off lawsuits by advertisers. Whether that turns out to be the case won't be known for a while.
To date, however, Facebook hasn't been able to get rid of a click fraud lawsuit that was brought by marketers back in 2009. In that case, a group of pay-per-click marketers alleged that they were wrongly charged for clicks
Facebook argued that its contract with advertisers disclaimed liability for click fraud. (At the time, the company said it wasn't responsible for "any third party click fraud or other improper actions that may occur.")
U.S. District Court Judge Jeremy Fogel in San Jose, Calif. agreed with Facebook that its contract disclaimed liability for clicks that were "fraudulent" in the sense that the clicker had dubious intentions. But Fogel ruled that the disclaimer didn't apply to clicks that were "invalid" -- such as when technical problems prevented users from reaching a landing page.
That case is still pending. The marketers filed papers last summer seeking to have the matter certified as a class-action. Facebook this week filed papers opposing that request.