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Social media sites like Facebook have long been criticized as catering to users’ own deluded senses of self-importance, but a current lawsuit against Facebook might prove that social media users really are that important. Within their circles of friends, in fact, users might well be considered celebrities–and that could have big legal implications.
When a federal judge last week denied Facebook’s motion to dismiss the case early on, she opened the door for meaningful legal discussion as to how far websites’ privacy policies actually reach and, perhaps, whether social networking makes users not just self-important, but actually important. As the Judge Lucy Koh noted in her order, this case, which stems from Facebook’s Sponsored Stories feature, involves multiples issues of first impression under California law. If the case doesn’t settle, but actually is resolved and likely appealed, it could provide valuable guidance for how future courts will decide issues regarding the relationship between social media sites and their users, and between users themselves.
Are we all public figures on Facebook? If so, what does that mean?
The right to publicity
The case in question, Fraley v. Facebook, centers around California Civil Code Section 3344, the state’s right-to-publicity statute. That statute and its common law cousin exist so that individuals — usually celebrities — can exercise control over the use of their likenesses in the commercial realm. California’s statute requires plaintiffs to prove six elements in order to prove a violation:
(1) the defendant’s use of the plaintiff’s identity
(2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise
(3) lack of consent
(4) resulting injury
(5) knowing use by the defendant
(6) direct connection between the alleged use and the commercial purpose
The plaintiffs claim Facebook violated the statute by including their names and photos in Sponsored Stories, which appear as items in users’ News Feeds when their friends “like” or otherwise interact with certain sponsors within Facebook. However, assuming all the elements are met (something by no means a given in this case, especially on the issues of consent and injury), “newsworthiness” stands as an affirmative defense to such a claim. Here’s how the court explains it:
A statutory cause of action for commercial appropriation therefore will not lie for “the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.”… “This First Amendment defense extends ‘to almost all reporting of recent events,’ as well as to publications about ‘people who, by their accomplishments, mode of living, professional standing, or calling, create a ‘legitimate and widespread attention’ to their activities.'”
Because newspapers, book publishers and other media outlets all rely on earning money in order provide such information, they need an exception to these laws in order to be able to conduct business without asking for consent every time they mention anyone’s name.
So, a guy walks into a bar …
… and Facebook says it’s news. The crux of Facebook’s argument is that users are public figures among their circles of Facebook friends, and that such status makes their actions inherently newsworthy to those same friends. That’s a heck of a stretch, but social networking — a trend lambasted by critics as catering to Generation Y’s immense sense of self-importance — is a far cry from the types of situations around which right-to-publicity cases have historically been centered.
If it really is important for our followers or friends to read our every waking thought, then perhaps we all are celebrities among our peers (something the plaintiffs actually claim in making a case for economic injury), and anyone who mentions us is just indisputably just reporting the news.
Does that mean I can libel you ‘on accident’?
Finding that social media users are, indeed, public figures within those platforms, might force us to redefine other long-established legal tenets in response to the social web. If we’re public figures in the case of publicity claims, are we also public figures in the case of libel claims? Defamation and libel cases stemming from posts on social-networking platforms, for example, aren’t unheard of in the United States (and, in fact, have skyrocketed in the United Kingdom). But if we’re all public figures, at least within the limited scope of our social media circles, do we have to take the additional step of proving actual malice in order to prevail on our claims, just like celebrities, politicians and other more-traditional public figures?
I’ve argued before that the law and the web don’t mix, and finding social media users to be public figures presents a golden opportunity either prove that the law can be flexible, or to just reaffirm my theory. Facebook and Twitter aren’t traditional media outlets, the “public figures” are hardly public figures by any of the various legal definitions of the term, and the people disseminating information about them (usually) aren’t trained journalists. If courts are going to go down the path of using legacy language to define new platforms, then surely they need to establish a middle ground that protects plaintiffs from having to prove too much, and defendants from having to adhere to journalistic best practices.
All this being said, Facebook’s newsworthiness defense could very easily fall flat, but that wouldn’t diminish the importance of a judge finding social media users to be public figures within those platforms. If Facebook doesn’t prevail on that point, it will be because sponsored stories walk and talk like advertising. As the judge notes in her order, “even newsworthy actions may be subjects of § 3344 liability when published for commercial rather than journalistic purposes.”
I can’t say I saw Facebook as the vehicle for re-envisioning decades of law regarding the rights of public figures against libel and misappropriation, but it’s not too surprising considering the significant cultural and technological changes it has brought about in terms of how we exchange information. Now, it’s just a matter of waiting for juries and, more importantly, judges to tell us how far Facebook has really brought us.