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Brett Emison
Brett Emison
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Facebook’s Fine Print

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We know – or at least we should know – to guard our privacy online. If you're an injured plaintiff, you can be certain insurance companies and their defense lawyers are snooping on your Facebook account. Even legislators get their Facebook accounts hacked. Even if you keep your personal information private, you never know when Facebook might accidentally release the account details of 100 million Facebook users or just flat out sell you and your friends to the highest bidder. So yes, online privacy is important.

Now, it turns you, you have to worry about Facebook privacy in the real world. Chris Matyszczyk wrote an article – Why you should always read the small print from Facebook – over the weekend documenting the "Crowd Scene Release" he found posted at a local restaurant in California.

Img Source: Chris Matyszczyk at CNET

From Matyszczyk's article:

And yet, as I read the smaller type, I saw that Facebook didn't merely intend to shoot and record with nary a privacy care.

No, by entering I was giving Facebook permission to use its recordings of me, my companion and anyone else sailing into the chowder house "throughout the universe, for any purpose whatsoever, in perpetuity."

Still, I could be assured that the company would, at least, allow me some rights to these recordings.

Not quite. "All such photographs and sound recordings to be the sole property of Facebook."

***

I have therefore contacted Facebook to ask whether the company can envisage, at any point, playing a recording of my intimate conversations to aliens from the Planet Zug.

The notice seems both troubling and potentially unnecessary. The questions involved come down to privacy and contract. It's black letter, first year law school basics that a binding contract requires (1) competency of parties to contract; (2) an offer; (3) acceptance of the offer; (4) mutuality of agreement; and (5) consideration. For a contract to be binding, all of the elements must be met. With respect to Facebook's "notice", it is unlikely that any, much less, all of the required elements are present.

A minor or mentally incapacitated person cannot form a binding contract. If a 17-year-old walked in for dinner, he or she could not enter into a legally binding contract. There was no offer made – just a statement about what Facebook purported to take. Because there was no offer, there was nothing to accept. Even if there was something to accept, there is little – if any – indication of mutuality of agreement (i.e., an intention of both parties to enter into the contract). To the contrary, it's likely many patrons failed to see or understand the "release" language. Finally, there is no consideration because Facebook failed to offer anything in exchange for the patrons' "release".

So if not a question of contract, then it turns to privacy. A California case – where Facebook's recording occurred – discussed the tort of intrusion. Sanders v. American Broadcasting Companies, 978 P.2d 67 (Cal. 1999). There it said: "The cause of action… has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. The first element… is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place." Id. at 71.

Oregon attorney Bert Krages went so far as to publish a pamphlet entitled The Photographer's Right that outlines some of the basic law on photography and privacy.

The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statute or ordinance, you're legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks.

Here, Facebook was photographing, videotaping, and/or recording people in a public place – a restaurant – in which Facebook had permission to make such recordings and the public should not have had an expectation of privacy. The sign posted by Facebook made no offer, permitted no acceptance, and offered no consideration.

It thus appears the notice was both unnecessary and ineffective. That said, just because it's "legal" doesn't make make Facebook's surveillance any more moral or "right". What do you think about Facebook's attempt to snoop on people in a public restaurant and assert ownership over every single thing it documented? For me, it just doesn't pass the smell test.

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© Copyright 2013 Brett A. Emison

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