Social Media Advertising and Consideration of New York Privacy Laws What Businesses and Advertisers Should Know Before Advertising on Social Media Websites

Facebook Does Not Adequately Address or Inform Users of New York’s Privacy Laws
Before addressing New York’s Privacy Laws, companies and advertisers must first understand Facebook’s own terms of use and advertising guidelines. While Facebook generally prohibits users from violating the rights of others, it does not adequately apprise users of the potential legal issues in using someone’s name or picture for commercial purposes and does not warn users of how easily a violation of privacy laws – such as New York’s – may occur.

A. Facebook’s Statement of Rights and Responsibilities
Facebook’s Statement of Rights and Responsibilities (the “Facebook SR&R”) generally acknowledge the protection of individual rights.6 The Facebook SR&R states that a user will not post content or take any action that infringes or violates someone else’s rights or otherwise violates the law.7 This is the only directive the Facebook SR&R dedicates to how a user must protect individual rights. Thus, Facebook’s SR&R inadequately addresses individual privacy rights and specific privacy laws.

Facebook’s SR&R also includes a section about “Advertisements and Other Commercial Content Served or Enhanced by Facebook.”8 This section directly addresses Facebook’s use of an individual’s name or picture for commercial purposes and essentially gives Facebook permission to exploit an individual’s publicity rights.9 However, even Facebook is vulnerable to New York’s Privacy Laws,10 despite the Facebook SR&R language. Moreover, Facebook’s SR&R – as applied to businesses or advertisers – fails to adequately address New York’s Privacy Laws. Facebook users – be it businesses, advertisers or otherwise – must be aware of such laws to avoid any legal pitfalls when advertising online by using an individual’s name, portrait or picture.

B. Facebook’s Advertising Guidelines
Facebook’s Advertising Guidelines11 similarly stop short of adequately addressing concerns about laws such as New York’s Privacy Laws. Interestingly enough, the Advertising Guidelines explicitly mention and prohibit “endorsement of [a] product, service, or ad destination by Facebook”12 but do not address endorsement of a product, service or ad destination by individuals. Facebook generally addresses privacy rights where it prohibits ads including “any content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right.” This is inadequate, however, as it does not outline New York’s Privacy Laws’ specific prohibitions, which are typically unknown to Facebook users, new businesses or certain advertisers.

Thus, for example, something as innocuous as a clothing company posting pictures of a celebrity wearing its jeans in public on the company’s Facebook page where the posting originated from a newspaper article on an unrelated topic could be a violation of both New York’s Privacy Laws and applicable copyright laws. Such a violation may result in the clothing company paying a large amount of money in damages to the celebrity and the newspaper in addition to having to immediately pull the advertisement. Therefore knowledge of New York’s Privacy Laws is important and necessary when using individuals to advertise on Facebook.

New York’s Privacy Laws and Application to Social Media Advertising
Under New York’s Privacy Laws, a person, firm, or corporation using for advertising or trade purposes the name, portrait or picture of any living person without having first obtained that person’s written consent, or if a minor the consent of said minor’s parent or guardian, is guilty of a misdemeanor.13 Any person whose name, portrait, picture or voice is used within New York for advertising or trade purposes without written consent may maintain an action in state supreme court against anyone using the person’s name, portrait, picture to prevent or restrain such use.14 An aggrieved person may obtain injunctive relief and may also sue and recover damages for injuries sustained by such use.15 A jury may also award exemplary damages for knowing use of a person’s name, portrait or picture in violation of the statute.16 Privacy Law violations may occur from a business or advertiser using a person’s picture or name in advertisements. For example, posting a picture of someone wearing particular clothing on a Facebook page or posting text on a Facebook wall or sending a Tweet on Twitter about the individual wearing the clothing violates the New York Privacy Laws if the subject individual does not consent in writing to their name or picture being used for the advertising purpose. A business may also violate the Privacy Laws by instead hyperlinking – for advertising purposes – from a Facebook page or profile to a third-party website containing an individual’s name or picture as part of a news story. The aggrieved individual whose name or picture was used without consent may sue to enjoin any further advertising and for damages. This liability underscores the importance of knowing what exactly qualifies as an advertisement and of first obtaining written consent from an individual before using their name or picture in any social media ad.

A. The Newsworthy Exception
The Privacy Laws, applicable to “advertising purposes or for trade,” generally do not apply to reports of newsworthy events or matters of public interest containing an individual’s name or picture.17 The newsworthy exception is broadly construed and includes social trends or any subject of public interest.18 Further, the newsworthiness exception applies “regardless of any false implication that might be reasonably drawn from the use [of plaintiff’s name or image].”19 For example, the use of a celebrity’s name or picture in a magazine or a newspaper would not violate the New York Privacy Laws because the celebrity name or picture is presumably being used in the context of a newsworthy event or matter of public interest.

On the surface, this appears to take pictures or names out of the realm of the Privacy Laws when considering social media advertising. A clothing company could argue that their picture of a celebrity wearing their jeans is exempt from the Privacy Law if, instead of directly uploading the celebrity’s picture onto their Facebook page, the clothing company instead hyperlinks the picture from a newspaper article on a third-party website for example a gossip column. The clothing company’s argument would be that since the original article and any pictures it contains are protected from the Privacy Laws by the newsworthy exception, simply re-posting the article but merely pointing out that a picture in the article includes a celebrity wearing their product does not remove the newsworthy protection.

B. The Newsworthy Exception Will Not Apply to an Advertisement in Disguise
The aforementioned argument, however, fails where an article is found to either be an advertisement in disguise or the use of an individual’s identity or photograph is found to bear no real relationship to the article – in that case the newsworthy exception is removed and the Privacy Law will apply.20 Placing a picture initially protected by the newsworthy exception in a pure advertisement likely removes the newsworthy exception. Thus, for example, an article about fashion may use an individual’s image where the individual is modeling apparel, “but the identical photo would not have been newsworthy if circulated by a clothier.”21 In one case, a defendant’s dissemination of materials with the plaintiff’s name and likeness was not interpreted as reporting on a social trend or matter of public interest where the purpose was to entice prospective customers.22

The “newsworthy” exception is also inapplicable if the republication of an article is used in an advertising context which conveys or reasonably suggests the subject endorses the publication or product in question.23 Commentary on the Privacy Laws suggests that the use of an advertisement juxtaposed with a republished news story featuring a celebrity’s name and likeness would be for trade purposes if the republication was solely designed to sell the advertiser’s product.24 Such a use would not fall under the newsworthy exception since it is a republication of outdated news no longer of general public interest,25 as opposed to a simultaneous reporting by a public medium of the actions of a person who voluntarily entered the public eye.26 Thus, a business or advertiser may not use the newsworthy exception as a shield against New York’s Privacy Laws by posting a picture of or hyperlinking to a news article when in reality the purpose of using the picture or the individual’s name is to advertise a product.

One way to avoid Privacy Laws application may be for a business or advertiser to focus on the apparel or product rather than the individual using it or emphasizing the product as a fashion trend or news item. An advertisement used to promote sales that includes a celebrity’s name or likeness may constitute a privileged use not subject to the Privacy Laws if the use of the celebrity’s name is incidental to the use for which the reproduced material was originally generated.27 For example, a newspaper could use a past cover page that includes the picture of a celebrity in renewal subscription advertisements to its subscribers; such a use likely does not violate the Privacy Laws because the use of the celebrity’s image is incidental to the original intended use – dissemination of news. However, this strategy has not been well-tested in social media case law and obtaining written consent from the individual beforehand is still the preferred practice. If the prior protected use and the latter use is not the same, a business or advertiser could still be liable under the Privacy Laws.

C. Hyperlinking Issues Under the New York Privacy Laws
It is not clear if posting a hyperlink from a business’ Facebook page or website to a third-party website – such as a news website – containing the newsworthy article in its original form but for the purposes of utilizing an individual’s picture and/or name also violates the Privacy Laws. All indications are, however, that this too would be a violation of the Privacy Laws, despite the article’s original newsworthy status. There are no Privacy Law cases yet directly discussing this kind of hyperlinking, but it would appear that that this practice conflicts with the broad terms of the statute which prohibit the use of any person’s name, portrait, picture or voice for advertising purposes or for trade without written consent.28

A company must therefore proceed cautiously in hyperlinking to or republishing an article containing an individual’s name or picture on a social media website. As a practical matter, many companies appear to engage in the practice of linking or even posting pictures of celebrities or individuals wearing their apparel; some individuals may take no issue or be flattered by the publication. While there is a lack of case law addressing the violation of Privacy Laws by hyperlinking from a social media website to third-party websites containing celebrity pictures or names, it is advisable to first contact the individual and ask for approval to post his or her picture or, in the absence of such, simply reprint the company’s own ads.

Privacy rights and New York’s Privacy Laws in particular are a very real consideration for anyone or any company deciding to advertise on Facebook. As Facebook continues to grow and online advertising is utilized more, privacy and publicity rights law suits will increase. Thus social media users should be aware of New York’s Privacy Laws in conducting their business and advertising activities on social media websites such as Facebook and Twitter. Republication of an individual’s name, portrait or picture onto a business or advertiser website or social media webpage without consent likely violates the New York Privacy Laws and subjects the infringing party to civil liability including injunctive relief and damages. Obtaining written consent from an individual before using his or her name, portrait or picture can help avoid costly legal pitfalls in online social media marketing and advertising.