In January of 2011, Facebook launched its "Sponsored Stories" ad program. As Ad Age magazine explained back then: if Starbucks, for example, buys a Sponsored Story ad, then the next time you check in or "like" a Starbucks, your updated status will run twice for all your Facebook friends: once in your news feed and again as a paid ad for Starbucks. That second time will be on the right side of each of your friends' news feeds, complete with your name and photo, and marked with the words 'Sponsored Story.' (The image on the right is the example from the Ad Age story.)
In other words, you will have become an unpaid spokesperson in a Starbucks ad. And you will have also become a potential plaintiff in Fraley, et al. v. Facebook, Inc. one of the most fascinating right-of-publicity class actions in America.
Earlier this month, U.S. District Judge Lucy Koh issued an important ruling in the Fraley case denying Facebook's motion to dismiss the right-of-publicity claims. Although the case is still young, Judge Koh's opinion is an excellent example of the challenge courts face in pouring old wine into new bottles. Here, the challenge is applying hoary principles of privacy law in the social media context, namely, to California's right of publicity statute, which provides that:
"Any person who knowingly uses another's name, . . . photograph, or likeness, in any manner . . . for purposes of advertising . . . goods or services, without such person's prior consent . . .shall be liable for any damages sustained by the person or persons injured as a result thereof"
As for whether there was commercial value in the class members' identities, the Judge allowed Facebook's founder to explode that defense through his own words from a promotional pitch for Sponsored Stories:
Plaintiffs quote Facebook CEO Mark Zuckerberg stating that "[n]othing influences people more than a recommendation from a trusted friend. A trusted referral influences people more than the best broadcast message. A trusted referral is the Holy Grail of advertising."
Talk about a social media version Shakespeare's "hoist on his own petard." Stay tuned. The case is young.