Facebook recently settled a class-action lawsuit stemming from Facebook’s alleged unauthorized use of users’ photographs in ‘sponsored stories’ advertisements on its site. The class action plaintiffs alleged that Facebook’s use of their images in “Sponsored Stories” advertisements violated the plaintiffs’ rights under the California right of publicity statute, which reserves to the individual the right to control their image for commercial purposes. Under the terms of the settlement, Facebook agreed to pay a total of $20 million, with half of the settlement funds donated to charities and law schools, and the other half going to plaintiffs’ attorneys. Other than the three class representatives, no Facebook users will receive any funds from the settlement.  

 

Facebook users had been serving as unwitting brand promoters on the site, appearing without their permission or knowledge in promotional ‘stories’ featuring advertised products and services. Merely ‘liking’ a company or brand functioned as an effective opt-in that allowed Facebook to use the user’s image in that company or brand’s advertising on the site. The only means of withdrawing from promotional use of one’s image was to ‘unlike’ the brand, which, prior to this settlement, was not an easy feat.

 

Under the terms of the settlement, Facebook agreed to facilitate the procedure for ‘unliking’ brands and thereby opting out of promotion, but it has not decoupled ‘liking’ a brand from use of one’s image in actively promoting that brand on the site. Nonetheless, this does reflect a change in policy for Facebook, which previously lacked any opt-out mechanism for its sponsored story advertising.

 

The real strength of the settlement perhaps lies not in the financial recovery but in the strengthening of the growing dialogue between social media sites and their users. Until recently, Facebook’s use of user images in its sponsored story advertising, and the internal policies relating to such advertising and the implicated rights of publicity, had been entirely opaque. Now Facebook has agreed to cooperate and communicate with users on the privacy and right of publicity concerns stemming from its widespread social media advertising campaigns.  At a minimum, more users have now been alerted to ways in which a site’s terms of use may permit the user’s image to be used, and they can now make a more informed decision as to whether having one’s face or profile picture appear in a brand’s online promotional narrative is an acceptable concession for free use of the Facebook website and its social connection services.