Despite Withdrawal of Controversial New Terms of Service, Facebook Users Should Not Post Content They May Want to Protect
There has been considerable press coverage regarding the general outrage inspired by Facebook’s changes to its terms of service since the original alarmist post appeared in The Consumerist. So, it was only a matter of time until someone threatened to initiate formal legal proceedings. And, according to The New York Times, approximately twenty-five consumer interest groups intended to do just that by filing a complaint with the Federal Trade Commission alleging unfair and deceptive trade practices today. As a result, Facebook has, at least temporarily, withdrawn the new terms of service in exchange for an agreement with the consumer groups to delay bringing a claim against it.
Of course, Facebook still intends to change its terms of service. And, from a practical perspective, I think it should. Facebook’s now-defunct-revised terms of service were probably a more accurate reflection of how Facebook users’ and ex-users’ content is currently used and how it will continue to be used in the future. In essence, I think there is probably a strong argument in favor of modifying the terms of service to state that Facebook users do in fact relinquish a fair amount of their rights with regard to the content they post on the site—if only to bring the legal effect of the terms of service into sync with the practical effect of posting content on Facebook. It will reduce Facebook’s exposure to liability, and, hopefully, it will encourage users to be cautious when posting valuable content on Facebook. As to how Facebook can accomplish such a change given the recent debacle as well as the questionable legality of unilaterally changing the terms of service for current users, that remains to be seen and is beyond the scope of this post.
Protecting the rights of users with regard to the content they post on Facebook—under almost any reasonable terms of service—will be difficult, time-consuming, and expensive (if possible at all). For example, I doubt that most Facebook users register the copyrights to the photos that they post on the site; however, copyright registration is a prerequisite to copyright litigation—and registration is not cheap.
Despite the possibility that from a purely theoretical standpoint, the user may retain most or even all of the legal rights to the content after posting it on Facebook, from a practical standpoint, once it is posted on Facebook, it is likely to stay on Facebook in one way or another for a long time. Therefore, I think that advice given to the readers in The Consumerist that states “[m]ake sure you never upload anything you don’t feel comfortable giving away forever, because it’s Facebook’s now” is sound regardless of which set of terms of service are currently in effect.
