Judge says “no fundamental right to use Facebook,” tosses antitrust case

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A federal judge ruled that Facebook has the right to exclude users if they install a program that alters the look of its website and swaps out its ad offerings.

In a ruling issued Thursday in San Diego, U.S. District Judge Cathy Ann Bencivengo dismissed an antitrust complaint filed by Sambreel, a controversial advertising company that offers products with names like PageRage that let users tweak the look of their Facebook page.

“We are pleased by the decision,” said Facebook’s lead counsel, Craig Clark, in an email statement. Sambreel’s lawyers did not immediately respond to a request for comment.

The companies got in a bitter fight earlier this year after Facebook “gated” users who had downloaded the Sambreel products — meaning the users had to remove PageRage software before they could log on to the social network. Sambreel responded with an aggressive legal and public relations campaign, arguing that Facebook broke antitrust laws. Judge Bencivengo, however, was having none of this:

There is no fundamental right to use Facebook; users may only obtain a Facebook account upon agreement that they will comply with Facebook’s terms, which is unquestionably permissible under the antitrust laws. It follows, therefore, that Facebook is within its rights to require that its users disable certain products before using its website.

The ruling comes at a time of uncertainty over the degree to which large companies like Facebook, Google and Twitter can control their products. On one hand, these are private companies that provide a free service — meaning they should be able to do what they like. On the other hand, they have become like public utilities that people depend on for their communications and on which third party companies make their livelihood.
As Judge Bencivengo noted, “this matter raises novel technological issues.” But she concluded that recent social media cases supported Facebook’s position. (Today, however, brought another decision involving Twitter that leaned the other way).

Sambreel’s position may have been partly hampered by the fact it is a decidedly unsympathetic defendant. According to a Harvard Business School professor, the company uses “trinkets” to trick users into downloading software that slows down their computers; meanwhile, publishers have accused it of hijacking ad spaces and stealing revenues from sites like the New York Times.

The legal issues at stake here are complicated. If you want to wade into details, the decision is embedded below:

Sambreel and FB

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