Facebook In Trouble Again…

The on-going issue of privacy online and whether there really is such a concept as ‘privacy’ online has yet again come to the fore in the latest action against Facebook.

Matthew Campbell from Arkansas and Michael Hurley from Oregon, two Facebook users have filed a class-action lawsuit on behalf of the over 166 million Facebook users in the US.  The allegation: Facebook is violating the Electronic Communications Privacy Act by the very manner in which they use and share the content of private messages sent via the Facebook platform, without the prior consent of the users.

To users of Facebook, being able to send private messages to friends and family, means just that – the messages and their content are private.  However, what is being alleged in this case is that Facebook exploits the content of all messages, private or not, identifies website links contained in private messages and then searches these websites to profile users.  It is being argued by Campbell and Hurley: “Representing to users that the content of Facebook messages is ‘private’ creates an especially profitable opportunity for Facebook, because users who believe they are communicating on a service free from surveillance are likely to reveal facts about themselves that they would not reveal had they known that the content was being monitored”.  Very relevant and very true.  “Facebook’s desire to harness the myriad data points of its users has led to overreach and intrusion…as it mines its account holders’ private communications for monetary gain.”  I am not a Facebook user, but had I been, this would cause me concern.

Facebook has responded by saying that the allegations are without merit and that they will defend themselves vigorously – what else could they say?  However, I can’t help feeling that whilst there have been many claims against Facebook in the past, which they have overcome, this issue is rather more concerning.  The problem that Facebook has is that on the one hand they are offering a customer service in the form of a free social networking platform and on the other, they have to now, provide shareholder returns.  Undoubtedly the potential for compromise in standards arises – especially where there is the possibility for creating profits from selling data and advertising.  I am not saying that this is what has happened here – just hypothesising.

This will be a difficult case for Facebook as apart from the angle of commerce and profit, the bigger issue for the users, that of trust and potentially deceit will come to the fore.  Those on the other side of the fence could argue that if you use a free networking site, you should not complain as you as the user, are literally the product/asset that is being sold/traded, as how else would the company be making any money?  Personally, I do not buy this.  Just because you are not paying for a service, does not mean that you are provided unlimited access to your privacy.  Terms and Conditions will make reference to content and Facebook’s right to use such content – but in reality these clauses are so far embedded that very few users read and understand them.  Where you are providing a facility such as ‘private messaging’, I do not think it is beyond the scope of reasonableness to accept that users will take this term at its literal meaning: these messages will be ‘private’, and will naturally have a reasonable expectation of privacy.  The answer may be in greater transparency being provided to users regarding how data will be used.  Facebook’s success has always been and will continue to lie in the numbers of its users.  If the trust wanes, consequences could be dire.  

Rupinder Bains

@rupinderbainsuk

Managing Director @PinderReaux