Over the past few years there has been no bigger area of growth for the marketing industry than the realm of social media. Facebook, Twitter, and Linkedin have exploded from what was virtually a non-existent market just a few short years ago, into a significant portion of many advertising campaigns. Indeed, over two billion dollars were spent advertising on line last year and it is predicted that this will quadruple to over 8 billion by 2015. (Media Life: Behind the Huge Growth of Social Media). This explosive growth has not gone unnoticed by businesses and thousands have rushed to join the social media world. From Fortune 50 companies, to small family run shops, business of all shapes and sizes are adopting social media as an effective means to reach their target customer.
While this social media explosion has provided an amazing opportunity for customer connection and engagement, there are legal issues that must be considered. Although Facebook accounts are officially available to only those over the age of 12, studies indicate that the use among pre-teens reaches into the millions. (Consumer Reports estimates approximately 7.5 million children under age 13 use facebook). This use by minors may have the potential to expose unwary businesses to some very unexpected liability.
When users sign up for Facebook, their profile displays personally identifying information including their name, photo, school, employer, birthday, hometown and relationship status. Users are also able to further customize their profile by including specific references to personal likes and dislikes such as movies, books, music and other areas of interest. This information provides Facebook a unique ability to offer advertisers a chance to direct their advertisements to a very specific demographic, but when the information relates to minors, it may also present potential problems.
Just last week, a unique issue arose in the United States District Court for the Eastern District of New York which should have Facebook, and all businesses with a presence in social media, reviewing their programs and policies. On May 3, 2011, Scott Nastro, on behalf of his child, J.N., brought a class action suit against Facebook in a matter styled Nastro v. Facebook, Inc., 11-cv-2128, (E.D. N.Y). In this action, plaintiffs allege that Facebook misappropriated the names and likenesses of children for promotional purposes without seeking the required consent from the child's parent or guardian.
Specifically, plaintiffs alleged that Facebook, through its "Social Ads" feature, misappropriates the name and likeness of minors, for commercial advantage, without the consent of the minors parents. Started in 2007, Social Ads is an innovative program which essentially provides Facebook the ability to use an individual Facebook users preferences as an endorsement. Through Social Ads, Facebook users are allowed to see which of their friends has "endorsed" a particular brand or product by displaying the names and likenesses of a user's Facebook friends who have interacted with the ad or the advertiser's brand page. Thus, when a user "likes" a Facebook page, the user's action is recorded on the page along with the users name and likeness. Similarly, when a user "likes" a brand or responds to an event, a message is displayed to their Facebook Friend's home page feed, announcing this action. Because Facebook does not provide an "opt out" to allow a user to prevent their name and likeness from appearing on a page they have liked, users are automatically "endorsers" of any page they like on Facebook. The plaintiffs' suit seeks to recover for these "endorements" by minors which occur without the necessary consent of their parents. While obviously of concern to Facebook, Inc., this proposed class action, could also have major national implications.
Many corporations with Facebook fan pages include areas for their fans to submit many different types of content. This suit is a reminder that even innocently constructed programs likely need review from counsel. From the submission of photos and videos, to the simple ability to add a users name and likness to a list of those "liking" a page, social media's ability to allow users to engage with a company's page may have consequenses that were unheard of just a few years ago. While your markeing department or agency can construct amazing campaigns through social media, make sure they are vetted for potential pitfalls such as those faced by Facebook in Nastro.
Let me know what you think.
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