It’s good to be back. Don’t ask.

This week, a lot of electrons have been spilled about Facebook’s new advertising/information/obscure-tort-law-breaking systems. The excellent Fred Stutzman (a fellow participant on this year’s Summer Doctoral Programme) has been investigating the system, and has just published this insightful report on one particular implementation of the new system. He highlights the various code elements that bring about the controversial data sharing, finding that:

Therefore, regardless of your login state to Epicurious [the site he tested], any time you load (not just review) a recipe or any other Beacon-enabled page, Facebook knows exactly what you are looking at. In essence, this setup is sending your clickstream and path data to Facebook, precisely correlated to your Facebook identity. On Beacon-enabled pages, Facebook knows everything you do in Epicurious.

Certainly, from a European point of view, this may raise questions related to data protection. For example, sharing any information on purchases or viewing/browsing habits related to any of the sensitive data categories without the appropriate consent may be a serious issue (although, of course, a lot of this happens already and is justified through weasel words in terms of use etc). Given that many others are raising questions (or raising hell) over the links made between Facebook and non-Facebook sites for advertising purposes (see here on how to block it, or here on how it all fits together, here being the wisdom of Doc Searls or here (must-read!) on the range of legal issues), I’m sure this will be the subject of much speculation in the coming weeks.

One final word. The tort principle being quoted by many is this:

“One who appropriates to his own use or benefit the name of likeness of another is subject to liability to the other for an invasion of his privacy.” (Section 625c, Second Restatement of Torts)

This does seem quite familiar and I realised why. I wonder whether the principles set out in Irvine v Talk Sport (those bold children at Talk Sport using an image of Eddie Irvine for sales purposes without permission), which established the notion that an action for ‘passing off’ is not limited to where both parties are in the same field of activity or where there is actual potential for financial loss. That case is, of course, part of the developing field of ‘image rights’. Landmines ahead for Facebook here, too?