Many Facebook users will have seen various legalistic posts popping up on their homepage over the last week. Some may even have reposted the legalese themselves. It is part of a wave of Facebook users attempting to secure their privacy and all intellectual property rights in the content they post on Facebook. Unfortunately, the legalese that has been going viral over the last few days has turned out to a nothing more than a hoax.
The wording that has been doing the rounds will no doubt be familiar to most Facebook users, but one variant of it is replicated here:
"In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, writing, photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times. (Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws ...
By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates."
Whilst legal terms and references to legislation are generously spread throughout the post, it is of little practical use.
For a start, it is full of errors. Copyright protection and protection of personal data seem to have been mixed up. Reference to the "Berner Convention" was presumably meant to be "Berne Convention". The "communiqué" attempts to be both copyright notice and exclusion of liability, whilst achieving neither. Content which, depending on the user’s settings, may have been publicly posted on the internet is deemed "private and confidential". The Uniform Commercial Code is not relevant in the UK and doesn’t relate to "punishment by law". The Rome Statute (assuming it is the 1961 version) relates to copyright, not privacy.
If there was any doubt on the matter, Facebook published the following "fact check" on its newsroom:
"There is a rumor circulating that Facebook is making a change related to ownership of users' information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been."
The contractual position
All new Facebook users are asked to agree to Facebook’s standard terms and conditions, such as their "Statement of Rights and Responsibilities" and "Data Use Policy", when they create an account. Their Statement of Rights and Responsibilities has a number of provisions relating to privacy and intellectual property.
In particular, section 2 clearly states that all users retain ownership of their content. That said, the same section also grants Facebook a royalty free world-wide licence to use and sub-license any of the content posted. If users generate content that is of such quality as to attract copyright protection, they will retain ownership of that copyright but by creating an account they have agreed to let Facebook use that content. For further information on intellectual property rights, Facebook provides the user with a number of helpful links, including a dedicated "About Intellectual Property" page.
Leaving intellectual property aside and turning to privacy, the Statement of Rights and Responsibilities clearly informs users that if their settings are "Public", their information will be freely available. If the user had any doubts about how their content and information would be used, Facebook Data Use Policy is particularly detailed. Perhaps too detailed – few users are likely to read the five and a half pages of small print, despite Facebook encouraging them to do so in the Statement of Rights and Responsibilities.
Against the background of terms and conditions that a user has agreed to, a user cannot subsequently unilaterally change the terms of its agreement with Facebook. Not least because any amendment to the terms must be in writing and signed by Facebook. Perhaps the author of this "‘communiqué" should have had a look at Facebook’s "About Intellectual Property" before posting it…