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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  1. Anonymous Coward
    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.

    1. JimmyPage Silver badge
      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.

      1. Tom 35 Silver badge

        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.

      2. TeeCee Gold badge

        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.

        1. Anonymous Coward
          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.

      3. Cazzo Enorme

        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.

        1. MrXavia
          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...

        2. This post has been deleted by its author

        3. NomNomNom

          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.

          1. Shakje

            @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.

      4. Whitter

        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.

  2. Anonymous Coward
    Anonymous Coward

    hmm

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

  3. Irongut

    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.

    1. Velv Silver badge
      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.

    2. Adam Azarchs

      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.

  4. Anonymous Coward
    Paris Hilton

    WAIT A MINUTE

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

    1. Gannon (J.) Dick
      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.

      1. Gannon (J.) Dick
        WTF?

        Re: WAIT A MINUTE

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

  5. Anonymous Coward
    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.

  6. Anonymous Coward
    Anonymous Coward

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

    1. asdf Silver badge
      Thumb Down

      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.

      1. Anonymous Coward
        Anonymous Coward

        Re: dream on

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

  7. Steve Knox Silver badge
    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.

    1. Wile E. Veteran

      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.

      1. Darryl
        Joke

        Re: Wow...

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

      2. chr0m4t1c

        Re: Wow...

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

        Oh yes?

        Have you checked the contract?

  8. minky

    Debbie Douez

    Dallas?

    1. Dave the Cat
      Thumb Up

      Re: Debbie Douez

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

    2. Andy Watt
      Thumb Up

      Re: Debbie Douez

      Props to this guy to get that in first

  9. Anonymous Coward
    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.)

    1. JDX Gold badge

      Re: Welcome to Facebook, sweetheart

      Only if you have a very limited imagination.

    2. VeganVegan
      Devil

      Re: Welcome to Facebook, sweetheart

      You can check-out any time you like,

      But you can never leave!

    3. llewton

      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

    4. Def Silver badge
      Joke

      Re: Me: Facebook-free since Feb 2004.

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

  10. Dave 32
    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.

    1. ItsNotMe
      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.

  11. Anonymous Coward
    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/

    1. xantastic
      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.

    2. TakeTheSkyRoad

      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.

  12. Kradorex Xeron

    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.

    1. Anonymous Coward
      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.

    2. Arclight
      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?

      1. Anonymous Coward
        Anonymous Coward

        Re: Terms and Conditions and the law

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

  13. Jean-Luc Silver badge
    Thumb Down

    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.

    1. Anonymous Coward
      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"?

  14. Anonymous Coward
    Anonymous Coward

    Put her in the stocks for being stupid

    I have plenty of rotten tomatoes.

    1. Audrey S. Thackeray

      Re: Put her in the stocks for being stupid

      "I have plenty of rotten tomatoes."

      Why?

  15. toadwarrior
    Facepalm

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

  16. Ralph B
    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.

  17. Rodrigo Valenzuela

    https://xkcd.com/743/

    1. Dave 126 Silver badge

      And you want fellow commentards to follow that link?

      You haven't even spent the time telling us what it is!

    2. Ted Treen
      Devil

      I down voted 'cos...

      just like Dave, I'm rather offended that anyone would assume I'm dumb enough to click on an unexplained link, notwithstanding I know http://http://xkcd.com/ is a stick-figure web-based comic.

      Why the "https"??

      1. NomNomNom

        Re: I down voted 'cos...

        https is a new internet feature. Adding https to the start of any url makes the url more secure. for example pedophiles cannot follow you if you go through an https link.

  18. Alice Glass
    Stop

    Facebook?

    I have literally no idea why anybody would want to use Facebook, ever.

    At least with Google you get some useful services in return for your personal data.

    That really should be an end to the matter. Off you go now.

    1. Dave 126 Silver badge

      Re: Facebook?

      Yeah, but no.

      Facebook has its uses, for example organising gatherings in meatspace.

      I have an account, but haven't logged in for months... party invitations etc are forwarded to my email. If I could could reply to messages through my email (like, y'know, email ) I would be happy.

      Just as soon as most phones can send and receive email happily, the de facto way of replying to messages requires a fucking dedicated client. Grr.

      1. vang0gh
        Linux

        Re: Facebook?

        "If I could could reply to messages through my email (like, y'know, email ) I would be happy."

        But then FB couldn’t push the ad featuring Debbie Douez down your throat. Zuckerbergs not going to allow that now, is he?

        1. DAN*tastik

          Re: Facebook?

          Click on reply and then change the reply address to that of the person you want to send it to? Can't think of a client hat doesn't suggest the names of those in your contact list as you type, it's not like you need to know everybody's address by heart...

      2. Alice Glass

        Re: Facebook?

        Nope. Facebook has no practical applications. It's sheep-throwing and friend-bragging. If you don't agree you're wrong.

    2. Tom Maddox Silver badge
      Thumb Down

      Re: Facebook?

      "I have literally no idea why anybody would want to use Facebook, ever.

      That really should be an end to the matter. Off you go now."

      Ah, it's the ever-popular geek fallacy of generalizing from one's own needs and desires. You prefer not to use Facebook, so everyone who uses it is an idiot. I'm sure that argument is very persuasive in real life.

  19. Anonymous Coward
    Anonymous Coward

    Then there's me...

    ... I've been semi-trolling failbook for a while now. Caught a bunch of people on sunday wishing me happy birthday. :D

    Anon because... well, just because. :)

    1. Anonymous Coward
      Anonymous Coward

      I do the same.

      Got precisely zero 'happy birthday' comments (real world or virtual) on my pretend birthday.

      I don't know if I am pleased or not that no one is stalking me.

  20. Anonymous Coward
    Anonymous Coward

    WTF?

    OK - lets see if I got this straight:

    Some chancer has a facebook account, that she willingly signed up for, with photos that she willingly uploaded, and facebook shows TO HER FRIENDS that she liked something that she willingly clicked the "Like" button for.

    And now she's looking for a payout? I thought it was only in the US that they had such ridicules lawsuits as this one.

  21. Paul Hovnanian Silver badge
    Devil

    Read the contract. Particularly the part about the disposition of your soul.

  22. Anonymous Coward
    Anonymous Coward

    Read the EULA ..

    > Debbie Douez is claiming that Facebook used her face and profile in ads without getting her permission or paying her a penny ..

    Read the EULA and this not only applies to Facebook, once you upload anything to these "social" networks, then it's no longer your stuff !

    www.facebook.com/legal/terms

    "subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)"

    `01. You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place'.

    `02. We do not give your content or information to advertisers without your consent.

    `03. You understand that we may not always identify paid services and communications as such'.

  23. Anonymous Coward
    Anonymous Coward

    zuckerbergs laughing all the way to the bank

    you are crying

  24. Anonymous Coward
    Anonymous Coward

    And then my friends still wonder...

    why I flatout refuse to make a Failbook account and simply laugh in their face about things like this.

    1. Anonymous Coward
      Anonymous Coward

      Re: And then my friends still wonder...

      Your friends. Riiiight. Like saddos such as yourself who seem to spend more time making clever (in your own minds,) word plays on "Facebook" have friends. Seems you twits spend more time thinking these things up and then posting about Facebook on other forums than the saddest 12-year old spends on Facebook itself. Loooooserrrrrrs ...

  25. Rabbers
    Stop

    It needs to be like this for the little guy!

    It all seems nasty and underhanded when a big company like Facebook has these legal terms in place, but what If anybody wanted to launch a great new social network thingy?

    Basically, if risk of copyright infringement, liable, plagerism etc. can't be reduced at the outset in this way, then nobody but a big-bully-boy-company with deep pockets will ever be able to lauch a website again!

    I think that any court has to consider the impact of judging contract terms to be unfair in the context of any company of any size, not just in the case of the big boys.

    Mark

  26. umacf24

    high-handed, outrageous, wanton, reckless, callous, disgraceful, wilful

    I call that thesaurus abuse. Wanton thesaurus abuse, in fact.

    1. I think so I am?
      Coat

      Re: high-handed, outrageous, wanton, reckless, callous, disgraceful, wilful

      wan·ton

      Adjective:(of a cruel or violent action) Deliberate and unprovoked.

      Noun: A sexually immodest or promiscuous woman.

      Verb: Play; frolic.

      Hahahaha

      1. Anonymous Coward
        Anonymous Coward

        Re: high-handed, outrageous, wanton, reckless, callous, disgraceful, wilful

        won.ton

        A wonton is a type of dumpling commonly found in a number of Chinese cuisines.

        Mmmmmmm, fooooodddd.....

  27. S Watts
    Alert

    Succinct quote...

    If you don't pay for a service, then you're the commodity, not the customer.

    (possibly paraphrased from elsewhere)

  28. Crisp Silver badge

    There's an urban legend

    That if you log into face book three times in a row at midnight, Zuckerberg will appear behind you and steal your photos for marketing purposes. You'll wake up in a bathtub full of ice and your photo albums will be empty!

    1. moonface

      Re: There's an urban legend

      Also, if you say Bloody Marky three times in front of a mirror. You may catch a view of a name tag appear above your forehead.

  29. Arclight
    Coat

    With her name

    She should think herself lucky the page she liked had nothing to do with Dallas.

    /Getting coat

  30. TakeTheSkyRoad

    This is happening with the apps too

    Interestingly since FB see's I'm single I'm getting LOADS of ads for dating sites and apps (suprise suprise), one of which is Zoosk.

    This new advertising feature lists my friends who recently used said dating app and I'm really not sure if the one who is married knows that fb is broadcasting that he's been checking out other ladies.

    If you give your details and data away for free it WILL be used. I'm still using facebook but I've not "liked" as much as I used to and I'm not using many apps either. On a seperate issue I've stopped "liking" some pages (Creme Eggs for one) because of they daily posting of crap garbage updates. No, blocking them wasn't enough.

    1. NomNomNom

      Re: This is happening with the apps too

      I've never liked anything

      1. TakeTheSkyRoad

        Re: This is happening with the apps too

        In this case they didn't have to... they used the app and in the ads facebook lists that you used it

  31. fLaMePrOoF
    Facepalm

    "Debbie Douez" - Why oh why couldn't she have been from Dallas?!

  32. Vostor
    Flame

    real simple fix...

    its a free program really are these people complete retards? so they will happily destroy everyone else's experience because they "think" there going to get some money??

    I think we should offer her the Darwin award for stupidity

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