It’s good to be back. Don’t ask.
This week, a lot of electrons have been spilled about Facebook’s new advertising/information/obscure-tort-law-breaking systems. The excellent Fred Stutzman (a fellow participant on this year’s Summer Doctoral Programme) has been investigating the system, and has just published this insightful report on one particular implementation of the new system. He highlights the various code elements that bring about the controversial data sharing, finding that:
Therefore, regardless of your login state to Epicurious [the site he tested], any time you load (not just review) a recipe or any other Beacon-enabled page, Facebook knows exactly what you are looking at. In essence, this setup is sending your clickstream and path data to Facebook, precisely correlated to your Facebook identity. On Beacon-enabled pages, Facebook knows everything you do in Epicurious.
One final word. The tort principle being quoted by many is this:
“One who appropriates to his own use or benefit the name of likeness of another is subject to liability to the other for an invasion of his privacy.” (Section 625c, Second Restatement of Torts)
This does seem quite familiar and I realised why. I wonder whether the principles set out in Irvine v Talk Sport (those bold children at Talk Sport using an image of Eddie Irvine for sales purposes without permission), which established the notion that an action for ‘passing off’ is not limited to where both parties are in the same field of activity or where there is actual potential for financial loss. That case is, of course, part of the developing field of ‘image rights’. Landmines ahead for Facebook here, too?