Internet Law

The new Facebook terms of service – are they legal?

Facebook has announced it intends to amend its terms of service. The changes should allow the social network to make greater use of personal data for commercial purposes. However, there are concerns that the new Facebook terms of service would be legal.

New Facebook terms of service – are they legal? © kbuntu - Fotolia

New Facebook terms of service – are they legal? © kbuntu – Fotolia

Facebook terms of service

The social network, Facebook, has once again announced that it intends to make amendments to its terms of service. The changes raise important issues for the individuals.

Proposed amendments

The proposed amendments to section 10 of the Facebook Statement of Rights and Responsibilities read as follows:

About Advertisements and Other Commercial Content Served or Enhanced by Facebook

10. Our goal is to deliver advertising and other commercial or sponsored content that is valuable to our users and advertisers. In order to help us do that, you agree to the following:

1. You give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you.

If you have selected a specific audience for your content or information, we will respect your choice when we use it.If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to the terms of this section (and the use of your name, profile picture, content, and information) on your behalf.

2. We do not give your content or information to advertisers without your consent.

3. You understand that we may not always identify paid services and communications as such.”

Unreasonableness

Lawyers at Wilde Beuger Solmecke see a number of legal concerns with the proposed amendments to Facebook’s terms of use.

The law that applies to these amendments is that generally concerning unfair contract terms and the test of reasonableness.

Under German law, standard business terms and conditions which are “so unusual” that a party would not expect to encounter them are ineffective (§ 305c German Civil Code, BGB).

One could begin to question whether this paragraph would not clearly apply to Facebook’s proposed amendments. Further, questions could be asked as to reasonableness of the proposed amendments under § 307 BGB.

It should be noted that the Regional Court of Berlin has already held that the global use of personal data granted to Facebook in its previous terms of use is legally questionable (Az. 16 O 551/10). The judgment is not yet legally binding, but is currently awaiting appeal (Az. 5 U 42/12).

Unfair competition

Section 10(3) of the proposed Statement of Right and Responsibilities allows Facebook to display commercial content without directly identifying it. Such a clause clearly breaches §§ 3 and 4(3) of Germany’s Unfair Competition Act, which unmistakeably prohibits the concealment of the commercial or advertising nature of content.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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