back to article Facebook accused of 'wanton' use of Canadian woman's pics

A Canadian woman has filed a class action lawsuit against Facebook in the Supreme Court of British Columbia for "wanton, reckless and callous" use of her photo and profile in the social network's ads. Debbie Douez is claiming that Facebook used her face and profile in ads without getting her permission or paying her a penny, …

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Anonymous Coward

Something written in the terms and conditions will say tough luck facebook can do it, without direct permission, cos you ticked the box.

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Meh

Depends on Canadian law ...

the UK position would be just because the T&Cs says so, don't necessarily make it so. There are many big companies who have tried to use T&Cs to disadvantage consumers, only to see the Office of Fair Trading shoot them down in court. It's entirely possible a UK court could find one, some, or all of Facebooks T&Cs unfair, and therefore invalid.

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Re: Depends on Canadian law ...

They have already been slapped in Canada once, so a lot of the stuff that's "on by default" in the US is off in Canada.

I would not be to surprised to see them get slapped again.

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Re: Depends on Canadian law ...

Yup, always amusing to see the words "statutory rights unaffected" on guarantees, contracts, etc.

Makes no odds, nothing that they write can affect any rights you have that are enshrined in statute (i.e. law), as they override any contractual weasel words. It's there to protect them ("we never intended our contract to ride roughshod over our customers' rights, look it even says so!"), not you.

It's like putting "Warning: contains nuts" on packets of peanuts.

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Re: Depends on Canadian law ...

The great thing about the UK law on contracts, is that if you get one clause thrown out for being unreasonable (or downright illegal) it voids the whole contract. I had exactly this happen with a landlord who had a clause in my tenancy agreement stating he could enter the property as often and whenever he wanted without giving me prior notice. He did this to all his tenants, even walking in on another tenant while she and her boyfriend were playing "hide the sausage". I referred the tenancy agreement to the ombudsman that oversees tenant rights, and on the basis of that one clause had the whole contract deemed unenforcible.

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Re: Depends on Canadian law ...

With web 2.0 T&Cs and/or excessively long T&Cs (e.g. iTunes 42 pages that change every time you update an App), I think the courts are moving towards the position that nobody actually reads then and thus they are not meaningful. There's even a bunch of law types mooting the idea that given their length and the uneducated masses reading them, that even if they were read, they would still be unenforceable as they cannot be reasonably expected to be understood by those being asked to agree to them.

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Anonymous Coward

Re: Depends on Canadian law ...

Errr, peanuts are peas (well, legumes) that look like nuts, not nuts that look like peas.

The warning's there because they can't guarantee that the peanuts haven't been contaminated by nut products that use the same production facility.

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WTF?

Re: Depends on Canadian law ...

That landlord sounds evil,

I am a landlord myself, and I would never dream of entering my tennets home without prior notification and I would always prefer them present, while their renting from me, its their home and I won't violate it! I hope that landlord got locked up for what he did!

If someone walked in on me unannounced in my home, they should expect to be physically incapacitated & restrained before I ask who they are, I don't care who they are, in my mind an intruder is a deadly threat to my family & me until they are secured and identified...

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Re: Depends on Canadian law ...

As a landlord myself I would never enter a tenants flat without notice. That's what the cameras are for.

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@NomNomNom

And what's more, they can look at the footage themselves online if they're paranoid for the cheap price of £4.99 a month.

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Anonymous Coward

hmm

Dont do facebook no more just because of the terms and conditions.

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I haven't read their T&Cs but there will be a clause saying once you upload a photo to FB it becomes their property to do with as they wish and you waive all rights. This is a common condition for these sites and is why I've never used them.

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Holmes

Just because it's in the T&Cs doesn't make it fair or legal. Such cover-all clauses have been thrown out time and time again.

I'm not claiming the woman is right, but on reading the story here it would appear Facebook has leapt from a page "Like" to a whole different association, something I would suggest is beyond the T&Cs since it is not possible to consent to the unknown.

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Privacy settings

There are privacy settings where you can explicitly enable to disable facebook doing that with your photo. I have it disabled. She didn't. You can debate over the relative merits of opt in versus opt out, but the fact is the option is there.

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Paris Hilton

WAIT A MINUTE

SHE HAD HER CLOTHES ON I THOUGHT THIS ARTICLE WAS ABOUT NUDITY

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Unhappy

Re: WAIT A MINUTE

"high-handed, outrageous, wanton, reckless, callous, disgraceful, willful and entirely without care"

Yes, I'm talking about you, El Reg.

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WTF?

Re: WAIT A MINUTE

Huh ? Will no one defend gratuitous nudity ? Wow, tough crowd.

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Anonymous Coward

@JP

Quite, just because you e-signed a "sort of" contract with Farcebook doesn't make it enforceable, especially when the laws of your country override it.

I could sign a document right now waving my right to not face capital punishment for any crimes I'd commited, but it wouldn't be enforceable in this country.

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Anonymous Coward

Facebook is becoming Faceads and is why I deleted my profile a long time ago. .

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dream on

Too bad they probably never delete anything. So glad the only account I ever made was a fake one I used to post on a few news sites before it got banned for being fake.

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Anonymous Coward

Re: dream on

Says the poster with the name "asdf". Hmmm, we don't trust you posts anymore!

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WTF?

Wow...

"high-handed, outrageous, wanton, reckless, callous, disgraceful, wilful and entirely without care"

Someone at that law firm felt the need to justify a thesaurus purchase, methinks.

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Re: Wow...

Each of those words has a specific legal meaning. Listing them all is necessary because it is possible for a judge or jury to find one or more of them applies but others do not. To prevail, the plaintiff needs to show some number of them apply

Silly in normal speech, quite necessary in a legal claim.

DISCLAIMER : I am not a lawyer but my daughter married one.

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Joke

Re: Wow...

Lawyers are OK, but I wouldn't want my daughter to marry one

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Re: Wow...

>DISCLAIMER : I am not a lawyer but my daughter married one.

Oh yes?

Have you checked the contract?

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Debbie Douez

Dallas?

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Re: Debbie Douez

I'm glad I'm not the only sicko that went there!

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Re: Debbie Douez

Props to this guy to get that in first

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Anonymous Coward

Welcome to Facebook, sweetheart

Signing up is free, but it'll cost you more than you can imagine.

(Me: Facebook-free since Feb 2004. Will keep it that way.)

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JDX
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Re: Welcome to Facebook, sweetheart

Only if you have a very limited imagination.

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Devil

Re: Welcome to Facebook, sweetheart

You can check-out any time you like,

But you can never leave!

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Re: Welcome to Facebook, sweetheart

i went to hell and back deleting (as in, actually deleting) my account about 4 years ago :D don't know how it works these days but it was no easy task back then.

otoh seems i'm missing out on a lot :D

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Def
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Joke

Re: Me: Facebook-free since Feb 2004.

So... you're eight this year then?

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WTF?

Deep Pockets Theory.

Since Facebook is (going to be...) worth US$100B, then they can afford to toss out a few US$1B to settle suits like this.

Dave

P.S. Of course, with a few more suits like this, FB may not be worth a plugged nickle.

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Facepalm

Re: Deep Pockets Theory.

"P.S. Of course, with a few more suits like this, FB may not be worth a plugged nickle."

And you are assuming that Farcebook is that now? Hardly.

When are people going to get through their thick skulls that one should not put ANYTHING on the Internet...and that includes in e-mails...that you don't want the entire planet to see.

You never know when something is going to come back and bite you right in the arse.

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Anonymous Coward

Amnesia?

Not only is it in the Ts&Cs, but they made a huge publicity push when they launched it and went to great lengths to publicise the fact that you easily can opt-out(*) in your account settings.

This was only a few months ago, has everyone forgotten?(**)

(*)- should have been opt-in of course, but can do you expect?

(**) - http://www.theregister.co.uk/2011/12/21/facebook_sponsored_stories/

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Mushroom

Re: Amnesia?

That was my first thought. I've personally opted-out within FB privacy settings.

If she didn't bother to review the settings they handily provide, I'm not sure what else she is expecting. Opt-in will never happen in non-paid services, and the fact that it's opt-out is very well advertised imho.

A bit more hassle to retain a lawyer than to set your privacy settings in the first place, but more upside I suppose.

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Re: Amnesia?

Don't forget that your average user won't see the tech new and certianly won't read terms and conditions. It's only when they see something that affects them that they then complain regardless of what they "agreed" to.

Thus why the issue over profile pics used in dating adverts which still happens though there may be a check now to ensure that there is little chance of you knowing that person.

Also why this now is an issue because she's feeling hard done by even though she technically agreed to it. Happy to see it's being challenged though ! The day when people take terms & conditions as law is a sad one indeed.

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Terms and Conditions and the law

There is a large difference between any contract and the law itself. Facebook's terms can be fully lawful in their "home country" (the US) but in another country, that contract could be deemed unlawful or unconscionable and therefore null and void in that country — and to do business in another country, you have to abide by that country's laws.

I am sick and tired of people who believe that just because you agree to a contract, that the contract is somehow made untouchable. Facebook reserves the right to change their terms, yes but even new terms have to be reasonable and lawful.

A contract is not an automatic pass to do whatever one wants.

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Anonymous Coward

The concept of an unenforceable or oppressively inequitable contract is very limited though.

You can't sell yourself into slavery or offer up your first-born, but there are surprisingly few limits on what you can agree to by contract and the law will uphold it. Pretty much anything that's legal, in fact.

I think you'd have a very hard time arguing that the part of the contract that, if you like something, and tell facebook that you like something, allows facebook to say that you have said you like something, was unenforceable. FB's lawyers would certainly argue that it was reasonable. What did you think you were doing when you clicked on like? Making a private mental note just for yourself? It's going to go on your profile, and it'll only be visible in adverts to those who would be able to see it if they visited your profile, so it's a very small extra step. Hard to see how the one could be that much more unreasonable than the other as to become unenforceable.

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Devil

Re: Terms and Conditions and the law

I would love to see what would happen to facebooks owners if challenged in the UK courts. If its legal in the US, but deemed illegal in the UK, would anyone expect the UK judicial system successfully extradite Mr Zuckerberg and co?

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Anonymous Coward

Re: Terms and Conditions and the law

I would hope so! but i expect not...

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Tough cookie, right?

What about the next time you sign an EULA? Do you want to read the entire War & Peace length of it just to make sure they don't do something retarded with your rights? Or at least, no more retarded than the average EULA?

EULAs and T&C exist, sure. But I don't want common-sense expectations of privacy to go out the door as well.

If you list your date of birth and exact address on FB, tough for you if someone uses that to hack your ID.

But expecting to be contacted by FB before you're prominently featured in a promotional campaign? Is that too much to ask???

IMHO: send her a case of champagne, pay off her lawyer and don't do it again. Another privacy lesson learned for FB.

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Anonymous Coward

"prominently featured in a promotional campaign" my arse.

She's visible in a tiny sidebar ad THAT WILL ONLY EVER BE SEEN BY A HANDFUL OF HER FRIENDS.

FB aren't showing these ads on tv or publishing them in the press. They show up only in the FB feeds of people who could see the like on her profile and will have already probably had an item go past in their news ticker when she clicked like in the first place. Nobody else in the world gets to see it.

How is that "prominent"?

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Anonymous Coward

Put her in the stocks for being stupid

I have plenty of rotten tomatoes.

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Re: Put her in the stocks for being stupid

"I have plenty of rotten tomatoes."

Why?

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Facepalm

Did they think facebook was giving them what is effectively unlimited free web hosting for free and ask for nothing in return?

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FAIL

Cruising for a Bruising

Ms Noname might win or lose this case, but FB are cruising for a bruising with this non-permitted photo usage. Just imagine - and I'm not suggesting anyone tries this - but just imagine you create a FB profile in the name of Someone Famous, and set the profile picture to be of that Someone Famous, and then you click on a bunch of Like links using this profile. The FB PHP script will then grind into action and Someone Famous will be seen endorsing a bunch of products without their knowledge. And you can be pretty sure that Someone Famous will have some mighty expensive lawyers who will slap Mr Zuckerberg around the court for doing so. Can't happen soon enough.

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https://xkcd.com/743/

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