Facebook, Privacy, and Your Agreement

Mark Zuckerberg, founder and CEO, shows off th...

Mark Zuckerberg, founder and CEO, shows off the new messaging system in Facebook. (Photo credit: Wikipedia)

Ok, here’s another “bonus post.” This one is on the topic of Facebook and how it works versus how some people think it works.

I noticed a few people post a “status” in the last few days that starts something like

For those of you who do not understand the reasoning behind this posting, Facebook is now a publicly traded entity. Unless you state otherwise, anyone can infringe on your right to privacy once you post to this site. It is recommended that you and other members post a similar notice as this…

Or something like that. It goes on:

PRIVACY NOTICE: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated…” etc.

So let’s start analyze this:

  1. The fact that Facebook is now publicly traded in no way changes your contractual agreement (that’s right, you have a contract with Facebook – that’s what the Terms of Use is) position with Facebook. Facebook has to honor the same terms of service and agreements they had before the IPO (Initial Public Offering). So, for the users, whether the company is owned by Mark Zuckerberg or Joe Six-Pack and his cronies, really doesn’t matter – they’re still responsible for the same stuff.
  2. Nothing you post on your Facebook status/wall/etc. changes your fundamental rights or obligations with Facebook. The ownership of the content that you post on Facebook is governed by the Terms of Service (that’s why I – and any attorney I know – strongly recommend that you read the Terms of Service before you click “ok”). And, because this is a contractual agreement, you cannot unilaterally (meaning on your own without their approval) modify the agreement. “Ah!”, I hear you scream, “But Facebook makes changes all the time without MY approval!” Well, guess what, that’s in your Terms of Service. Facebook can make minor system changes, improvements, enhancements, etc without your express permission. Your recourse if you don’t like the changes? Don’t use Facebook.

So let’s think about the alternative… if what you posted on Facebook could modify the agreement, they would have to have an attorney (or someone) reading every post by every person ever to make sure that things haven’t changed. Not only is that patently ridiculous and no court would require them to do that, but you don’t want an attorney reading every post you ever made (attorneys with information and free time on their hands is a bad combination). Think of the trouble that would cause!

Lastly, legal issues aside, Stop Being Stupid on Facebook. Generally speaking, you have a right to protect your works (copyright) and ideas (trademark) and other intellectual property. However, that requires that YOU police others’ use or theft of that content and that you don’t knowingly give them express or implied permission to use your property. And, that also assumes that you know about the use/theft and that there’s an adequate remedy available. For example, imagine the Ridiculously Photogenic Marathoner (look it up), do you think he gave every website that used this picture express written permission to use the photo? Ok, who does he sue to enforce his rights? Everyone? He’d spend MILLIONS trying to recover a few dollars from each offender – totally not worth it, nor could he track down every single possible defendant.

Bottom line: if you don’t want it (at least potentially) available to anyone anywhere, don’t put it on the Internet. Not even Facebook.

Oh, one last thing: in the “notice” I saw posted by friends on Facebook, there was a citation to the UCC (the Uniform Commercial Code). The sections cited have NOTHING to do with topic of the posting. If you see something that quotes a law, rule, or regulation, look it up. Chances are, in cases like this, it’ll be immediately obvious that somethings amiss. Ar best, you’ll avoid looking like a doofus. At worst, you’ll know more than when you started.

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