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Facebook – 10 Years of Legal Issues and Still Counting

Facebook – 10 Years of Legal Issues and Still Counting

Facebook, arguably the world’s most successful and influential social networking site, has just turned 10 last month.

On 4 February 2004, Mark Zuckerberg launched The Facebook from his Harvard dorm room. Originally intended to just serve as a social networking site exclusively for university and college students in the United States, Facebook has since grown by leaps and bounds to become the largest social networking site in the world.

Facebook has attracted 1.23 billion users worldwide so far, and reportedly earned $7.9 billion in revenue in 2013.

Facebook made a grand entrance into Nasdaq stock exchange when it went public in May 2012 by having one of the largest initial public offerings in Internet history, and it continues to make headlines every now and then, the latest being the acquisition of WhatsApp for a whopping $19 billion (Facebook bought Instagram for $1 billion in April 2012, just before it went public).

This article is not intended to talk about how awesome Facebook is, or the benefits or changes that Facebook has brought to our daily lives (for better or worse).

This article is meant to set out the various social and legal implications arising from the rapid growth and widespread use of Facebook in the last 10 years.

In this article, reference will be made to Facebook’s Statement of Rights and Responsibilities (“Facebook’s Terms”), which is essentially the main document that sets out the terms of use that governs the relationship between Facebook with users and others who interact with Facebook. Violation of any provisions under Facebook’s Terms will result in the individual’s Facebook account being terminated or suspended.

Posting third party content

Very often, we find users posting contents such as text, graphics, photos or videos not belonging to theirs on Facebook without realising that such actions could potentially amount to infringement of copyright law which can result in both criminal and civil liability.

According to Facebook’s Terms, users are not allowed to post content that infringes or violates someone else’s rights or otherwise violates the law. Facebook has set up a special tool to enable users to report to Facebook if their intellectual property rights have been infringed by other users.

Facebook has the right to take down the infringing content upon receipt of such a report. It also states that repeated or continuous infringement of other’s intellectual property rights may result in the individual’s Facebook account being terminated or disabled by Facebook.

Who owns and controls your content?

When Facebook first started, it tried to claim ownership over all contents posted on Facebook. This had, of course, resulted in much criticism, which prompted Facebook to change its terms of use.

The Facebook’s Terms now state that all users own all of the content and information they post on Facebook, and they give Facebook a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any content that users post on Facebook.

Facebook also tried to remove a sentence from the Facebook’s Terms saying that “the license will automatically end when the user removes the content”, and this had again caused an uproar, forcing Facebook to restore that particular sentence.

Disclosure of sensitive or confidential information

The ease of posting information online and the desire to share (or show-off) information have resulted in instances where users (knowingly or unintentionally) leak sensitive or confidential information (such as trade secret, corporate intelligence or financial disclosure in violation of securities laws) to the public.

We all know what once information gets published on the Internet, it will never get deleted.

The instantaneous and far-reaching nature of social networking makes it difficult for users to recall information that has gone public. The implication can be very serious because for information to remain confidential, it must have the necessary “quality of confidence”. The confidential information will lose its confidential nature the moment it is disclosed to the public.

Defamation

Lawsuits alleging defamation based on content posted on social networking sites such as Facebook are on the rise.

A defamation claim may be actionable when a person has published words which connote any imputation which may tend “to lower the other person in the estimation of right-thinking members of society generally”, “cut him off from society” or “to expose him to hatred, contempt or ridicule”.

Courts have ruled that posting on Facebook amounts to a publication to the world at large. Facebook’s Terms require users not to post content that is hate speech, threatening, or pornographic; incites violence, or contains nudity or graphic or gratuitous violence. Users should, therefore, avoid making statements that are harmful, offensive or inflammatory.

Cyber-stalking and cyber-bullying

Stalking and bullying that used to only take place in real life, are now also happening on the Internet, particularly on social networking sites.

Many users tend to post too much of personal information on their profile pages, which enables anyone with access to that information to stalk them. What is more worrying is, many users are not aware that everything posted on Facebook is by default made public, and it is up to the users to restrict the access to the information to just friends or family.

Cyber-bullying can take many forms, such as posting hurtful or threatening messages on users’ page, spreading false rumours online, starting pages to ridicule or spread gossip about individuals, or circulating embarrassing or compromising pictures about individuals.

It has been reported in the newspapers that many teenagers have committed suicide or suffered from anxiety and depression due to cyber-stalking and cyber-bullying that they had experienced on social networking sites. Facebook’s Terms explicitly state that users are not allowed to bully, intimidate or harass any other users on Facebook, or use Facebook to do anything unlawful, misleading, malicious or discriminatory.

Electronic discovery

Lawyers and prosecutors have resorted to fishing for evidence from information posted on Facebook.

Some have even applied for court orders to obtain such information. In one instance, a photo of a wife hugging an unidentified man on Facebook was accepted as evidence to support a claim for adultery. In another instance, an accused person’s web chat history was admitted to prove intent to kill in a murder trial.

Privacy

Many companies and businesses have leveraged on the use of Facebook as a marketing tool as it provides a platform for much more interactive communications between companies and customers.

Companies will be able to gather information of users who have liked their pages and use that information to sell products and/or services to the customers. The Facebook’s Terms state very clearly that if you wish to collect information from your users, you must obtain their consent, make it clear that it is you (and not Facebook) are the one collecting their information, and publish a privacy policy explaining what information you collect and how you will use it.

Employers and Schools

It is becoming increasingly common for employers to use Facebook to vet current and potential candidates for employment and background check.

Some employers have even used information gathered from Facebook as a basis for firing or taking disciplinary action against employees. In the United States, this kind of conduct has been held to have violated the National Labour Relation Act. In Germany, a new law has been passed to prohibit employers from discriminating against potential candidates based on what they do in their private time.

Schools and universities have also used information found on students’ Facebook pages as grounds for disciplinary action and suspension. This has, of course, caused much controversy, and blurred the line between protecting one’s privacy and relying on public information found on social networking sites.

Conclusion

The above are just some of the many legal issues that have arisen over the years, and the legal issues will continue to evolve and counting, as Facebook marches into the next decade.

To cite an example, a German data protection commissioner has recently raised his concern that the deal between Facebook and WhatsApp may lead to serious data protection issues as WhatsApp’s users’ personal data will likely be merged with Facebook data for users profiling and commercial exploitation for advertising purposes.

*****
About the author:
This article was written by Edwin Lee Yong Cieh, Partner of LPP Law – law firm in Kuala Lumpur, Malaysia (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.
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