By Brennen Johnson
Facebook’s recent attempts to prevent fraudulent activity on its platform have drawn both heat and praise. Last week, Facebook issued a statement regarding its continued commitment to combat the proliferation of spammers selling fake “likes.” Facebook explained that businesses can harm themselves through the use of such services because they “could end up doing less business on Facebook if the people they’re connected to aren’t real.”
While the company’s stated intent to cut down on this form of spam has garnered positive response from users, other practices aimed at protecting the authenticity of interactions have come under severe criticism. For instance, last week Facebook officially apologized to the outspoken protestors, Sister Roma and Lil Miss Hot Mess, for its practice of flagging and freezing profiles made under drag queen pseudonyms. Facebook’s product chief issued the apology, stating that hundreds of drag queens who were flagged for violating Facebook’s real-name policy will be able to use their stage names on Facebook. The same practice of requiring the “real names” of users has drawn similar criticism in the context of domestic violence victims and political dissidents living within authoritarian political regimes.
Despite the public apology for applying such a strict “real name only” policy, the company has done little to amend the actual written language of its guidelines for profile names. Facebook’s official terms of use stipulate that users “will not provide any false personal information on Facebook, or create an account for anyone other than [themselves] without permission,” nor “create more than one personal account.” Facebook requires that users provide their “authentic identity,” and indicates that user names should be listed as found on “acceptable identification forms.” Such acceptable forms of identification include a birth certificate, driver’s license, passport, marriage certificate, official name change paperwork, personal or vehicle insurance card, non-driver’s government ID (e.g. disability, SNAP card, national ID card), green card, residence permit, immigration papers, or voter ID card. The fact that the company’s policy remains in place indicates that Facebook’s apology for the strict application of its terms of use is just that: an apology for the policy’s application, not its content.
Courts have held that a company’s ability to collect damages for misuse of its computer systems typically depends on whether such use was done without permission. When determining whether an abuser was acting without permission, a court may consider violations of a company’s terms of use. It appears that Facebook has been successful in using legal action to deter unauthentic interactions on its site. In its statement condemning the use of fake “likes,” Facebook claims to have received 2 billion dollars in legal judgments against “spammers” who have engaged in unauthentic interactions on its platform. The success of these claims seems grounded in the spammers’ blatant violations of the terms of use clause prohibiting the creation of fake accounts.
Ironically, while Facebook is garnering praise for its enforcement of its terms of use clause against “spammers,” it is this same clause that would allow Facebook to prevent users like Sister Roma or Miss Lil Hot Mess from creating accounts under their pseudonyms. So when does the enforcement of this terms of use clause become practical or profitable for Facebook? An established legal principle could help Facebook outline a policy as to when the strict application of this clause might be a worthwhile course of action. According to some courts, the ability to recover monetary damages for the violation of such clauses may depend on whether or not the activity was for commercial purposes. And perhaps this is the approach that Facebook should take when deciding whether to strictly or leniently apply this clause from their terms of use: Are users facially violating terms to connect with others in the way they feel is most authentic, the way Facebook intended, or are they abusing the system for commercial gain?
Washington Journal of Law, Technology & Arts 