Wrong Without a Remedy

My Internet law students recently read Facebook’s Terms of Service and Privacy Policy.  One lesson learned:  once a picture from one’s Facebook page is shared with others, neither Facebook nor the one who posted the picture can control its uses.   Facebook may be able to delete it from its servers–I’m dubious that it can do so reliably, but for this post I’ll resolve my doubts in Facebook’s favor–but if it is shared beyond Facebook, kiss control goodbye.  A NYTimes article makes the point with a gruesome example.  After Caroline Wimmer was murdered in her apartment Mark Musarella, one of the responding EMT’s, took a picture of her beaten and strangled body and posted it on his Facebook page.  Wimmer’s family learned of the photo through a reporter.  Musarella’s Facebook account was deleted by the time they looked for it–one of his Facebook friends reported the picture to his employer hospital, which fired him–but that did not end the family’s inquiry.  They hired a lawyer to track what happened to the picture while it was on Facebook.  “Facebook said it would provide the Wimmers with certain details about the activity on Mr. Musarella’s account, but only if he — the very man who had taken the picture of the dead woman and posted it for his world to see — signed a consent form. Facebook helpfully sent along a copy of the standard form.”  The Wimmers recently sued Facebook.  Not for money, but “to change things, so no other family members of a murdered person have to experience these things.”  I empathize with the Wimmers’ anguish and horror but this lawsuit is a nonstarter.  The website immunity provisions of Section 230 of the Communications Decency Act should relieve Facebook of any obligation to screen for or remove content such as this.


Facebook handled its latest privacy kerfuffle more adroitly than prior dust-ups. (Posts here, here, here, and here.) It started when consumer-rights blog Consumerist publicized a recent change in Facebook’s terms of service.  Facebook eliminated the right of users to remove their content–the profiles they created, pictures they posted, etc.–and added a provision giving Facebook the right to retain a user’s content even after the user’s content was terminated. As Consumerist characterized the changes, “anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later.” That’s a scary thought, and it rightly stirred up Facebook users.  At first Facebook couched the changes in ways less threatening than they were perceived–explaining, for instance, that after a user terminated his account the comments he posted on another user’s wall would remain on the site, not that Facebook wanted to use pictures of students doing jelly shots until they were old enough for AARP. Then Facebook caved, reverting to the terms of use in effect before these changes.  The site’s chief privacy officer “characterized the event as a misunderstanding, stemming from a clumsy attempt by the company to simplify its contract with users . . .”

This controversy goes to the heart of the latent ambiguity in Web 2.0 applications.  I create the framework, you add the content, I manipulate/mine/exploit the content for my financial gain.  It is a seductive trap.  Users go to the site and see their profiles, their walls, their pictures, their friends, their lives online.  Sites like Facebook are structures on which users hang whatever interests them, and if enough users hang interesting stuff then more users will come.  They can be brilliant examples of the profound, transformative power of the Internet, the network of networks manifested as a community of communities.  The users provide the material from which it is all woven together but once that material is on the site’s servers its ownership can be murky.  It’s a sure bet that most Web 2.0 terms of use give the sites rights in user-created content that do not correspond with the users’ expectations.  Facebook has trampled users’ expectations before and will do so again.  It’s an inevitable result of its business plan.