BrandTotal Continues Battle With Facebook Over Data, Says It Could Face 'Immediate Liquidation'

Analytics company BrandTotal is again urging a federal judge to prohibit Facebook from blocking BrandTotal's data-gathering efforts.

In its new request, BrandTotal argues that Facebook effectively “imposed an information monopoly on commercial advertising metrics,” by preventing other businesses from collecting information relating to ads on the site.

The analytics company adds that it “could face immediate liquidation,” unless granted an injunction against Facebook.

The two companies have been battling since last September, when Facebook took steps to ban BrandTotal's UpVoice browser extension from the platform, and demanded that Google remove UpVoice from the Chrome Web Store.

In late September, Facebook alleged in a lawsuit against BrandTotal that UpVoice -- which enables data collection -- violated the social networking platform's terms of service, and ran afoul of a federal anti-hacking law.



Two weeks later, BrandTotal countersued Facebook, alleging that the social networking service interfered with BrandTotal's contracts and engaged in unfair competition, among other claims.

BrandTotal, which says it compensates users who install UpVoice, also sought a temporary restraining order requiring Facebook to stop blocking BrandTotal, and to rescind the takedown notice sent to Google.

U.S. District Court Magistrate Joseph Spero in the Northern District of California has so far sided against BrandTotal.

In November, Spero denied BrandTotal's request for a temporary restraining order. Last month, he dismissed BrandTotal's counterclaims, but said the company could redraft them and try again.

Spero suggested in last month's ruling that Facebook's recent privacy settlement with the Federal Trade Commission requires the company to deny access to third parties that haven't certified compliance with Facebook's terms of service.

“Assuming for the sake of argument that Facebook acted for the subjective purpose of harming a competitor, the action that it took was no more than compliance with a legal obligation that it would have been compelled to meet regardless of its motive,” Spero wrote.

Since then, BrandTotal released “UpVoice 2021,” a new version of its data-collection tool that, according to the company, only gathers information about ad viewership, and not demographic data.

BrandTotal designed UpVoice 2021 such that it is entirely passive, meaning it does not make any requests to Facebook servers, but rather collects information panelists actually see as they browse Facebook,” the company writes.

BrandTotal says in its new papers that it began deploying UpVoice 2021 on March 11 -- though without permission from Facebook.

“Given Facebook’s position that it does not permit automated collection ... BrandTotal has no expectation that Facebook will affirmatively authorize UpVoice 2021,” the analytics company writes.

BrandTotal also argues that Facebook's consent decree with the FTC shouldn't be interpreted as banning BrandTotal's tool.

“A more balanced and inclusive reading of the consent order shows that it is directed to protecting users and does not prohibit user-initiated data sharing of the sort at issue here,” BrandTotal writes.

Facebook has not yet responded to MediaPost's request for comment.

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