Social promotions are becoming an important phenomenon in online advertising, but they could spell trouble for hyperlocal news publishers who run local ads suggesting that neighbors “like” a product without getting permission to use such endorsements. A good example is the recent trouble that Facebook ran into when it started running ads telling friends that other friends “liked” a specific product or service.
Angel Fraley and other Facebook users filed a class action lawsuit against Facebook in San Jose, Calif., claiming that Facebook misappropriated their likeness after running “Sponsored Story” ads that told their friends that they “liked” the products promoted in the stories. Fraley and other plaintiffs alleged that Facebook never got permission to use their names and likeness in the sponsored section. On December 16, 2011, Federal Judge Lucy Koh agreed that Ms. Fraley had a claim and refused to dismiss the case.
California, like many other states, have laws that prohibit the use of a person’s picture, voice or likeness for advertising, selling or soliciting purposes, unless authorized by the individual. The theory is known as a “right of publicity.” Facebook claimed that it had permission, because in its terms of service, users agree that their “names and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced.” But Judge Koh believed Facebook did not get adequate consent from its users. “Plaintiffs here contend that they never consented in any form to the use of their names or likenesses in Sponsored Stories,” Judge Koh ruled, “Sponsored Stories were not even a feature of Facebook at the time they became registered members.”
For hyperlocal news publishers, the rule is pretty simple. Get permission, primarily in the form of a written release, to use the likeness of any individual in connection with an advertising or endorsement for a product. For example, a local car dealership should not use a picture of a movie celebrity in a banner ad without the celebrity’s permission. Showing a family picture for an ad promoting a local pizzeria also could spell trouble if the family members did not give permission for use of the picture. If you desire to use comments posted by users that provide favorable review of a product or service, get permission to use the person’s identity, before using it for an ad. On the other hand, these laws do not apply to use of a picture, name, voice or other likeness in a news context.
This article is intended to provide general information, and it does not and is not meant to give legal advice.
Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.