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Are Your Face & Privacy Worth More Than $15?

Bob Sullivan

Your privacy took another shot in the gut this week.  A federal judge has ruled, essentially, it’s “no harm, no foul” for companies like Facebook to take your picture and use it in an advertisement. In fact, the ruling is even more dismal than that. The rights to your face, it turns out, are worth only about $15.

The world might be fascinated by the NSA, Edward Snowden, and his pole-dancing girlfriend, but that’s a distraction from the slow, steady erosion of privacy that’s happening every day.

U.S. District Judge Richard Seeborg approved a settlement Monday in San Francisco in the infamous “sponsored stories” class-action lawsuit against Facebook.You’ll recall that a few years ago, Facebook started plucking pictures out of users’ profiles and placing them in ads for their friends, rightly presuming that such ads would get higher-than-normal attention.

How bad could that be? This bad:

A couple of years ago, Cheryl Smith had her photo used in a singles ad displayed to her “friend” Peter.

“Hey Peter,” the ad said, with Cheryl’s smiling face on top. “Hot singles are waiting for you!!”  Peter might still have dismissed the advertisement, but for one thing. Cheryl is his wife. The happily-married couple shrugged it off, but it’s easy to imagine how far south that might have gone.

In Smith’s case, a third-party app was to blame. In today’s version of sponsored stories used by Facebook, users’ images are used in ads only if they “like” a page.  Sure, somewhere in Facebook’s terms of service the firm grants itself permission to do that, but that’s a far cry from informed consent. There is no way to opt out.

A Question of Harm

On Monday, Facebook agreed to settle a lawsuit about sponsored stories ads for $20 million.  Consumers who opted into the suit will get about $15 for their trouble, a typical “coupon” settlement that enriches lawyers and insults the plaintiffs. But in Judge Seeborg’s order granting approval to the settlement, he tried to close the door hard on further claims.

“It is far from clear (plaintiffs) could ever have shown they were actually harmed in any meaningful way,” he wrote.

Well, there was no blood. And no one’s bank account was raided. But no harm? That’s in the eye of the beholder.

First, a bit of a reminder about tort law and civil lawsuits. It’s not enough to prove a company did the wrong thing, or even broke the law in most cases. Conceptually, civil court is there to make people whole again after they’ve been harmed. To recover damages, the victim has to prove, and quantify, harm. That’s how we end up with tortured discussions like this: “Loss of an arm for 40 years is worth $1 million, loss of both arms is worth $2 million,” and so on.

To be sure, Facebook didn’t cause any amputations. The harm inflicted by taking someone’s picture and using it in an ad without permission is far more subtle, and requires real 21st Century digital thoughtfulness. The judge’s order in this case is severely lacking in that regard.

The Difference Between You and Madonna

Being hit by a privacy invasion, it’s been said, is like getting mugged. You feel perfectly safe until it happens to you, and then you almost never feel safe again.

If Madonna’s image was stolen and used in an ad, there’d be big bucks at play … because Madonna could demonstrate what she usually earns in fees from use of her likeness. Sorry, you and I don’t get paid for our faces. But surely your face is worth more than $15 (I’ll leave my face out of this). In fact, Facebook made more money off its misguided experiment in sponsored stories than it paid in settlement, so your face must really be worth something.

But the real issue with privacy invasions, and the harm they do, is the difficulty expressing future costs in today’s terms. When you give a grocery store your phone number in order to get 50 cents off a carton of ice cream, what does that cost you? Perhaps nothing at all. Perhaps it means you’ll get some annoying junk mail or e-mail. Perhaps it means someday you’ll pay extra for things, as the store profiles you and subtly introduces dynamic pricing. Perhaps someday your health insurance will cost more when the store shares your buying habits with a large insurance firm, or your job prospects will be diminished when employment background firms create a formula that links ice cream buying with poor work absence records.

My imagining, however realistic, of future harms caused by privacy transgressions are hard to use in court. Tort law is bound by actual harm, though not entirely. Look at all those permission slips your parents are signing right now for things like school sports teams and you’ll likely find the phrase “loss of enjoyment of life.” As in, parents are routinely asked to waive their ability to sue school districts for loss of enjoyment of life if their kids get hurt playing sports. That’s because lawyers have proven there’s a value not just to having a right arm, but also to using that arm freely for carrying around a baby or playing catch in the future.

There needs to be an equivalent “loss of enjoyment of privacy” concept — let’s call it the cost of being creepy.  Otherwise, judges across the land will continue to create a precedent indicating that outrageous privacy violations such as putting your face next to an ad for drugs, or sex, or soft drinks is a “no harm, no foul” situation.  Without such a concept, the message to American companies is clear: it’s open season on American citizens’ privacy, as long as you are willing to pay them $15 now and then.

You’ll really miss your privacy when it’s gone.

This story is an Op/Ed contribution to Credit.com and does not represent the views of the company or its affiliates.

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