Evidently, people on Facebook are concerned about their privacy and protecting their posts about their kids, dogs, meals, prayer requests, political rants and family photos. One can hardly blame them. I know I don’t want the world seeing this photo of me should I foolishly decide to run for political office:
One can even dig deep into my past to find embarrassing photos like this one:
As a result, many folks are now protecting their rights by expressly reserving their privacy with this post:
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 1-103 and the Rome Statute)
As a lawyer, this fascinates. Yes, it’s true. I’m a lawyer. I graduated from law school, passed the bar exam–all of that. As a service to my Facebook friends, I decided to use my finely honed lawyering skills to break down this disclaimer and explain exactly what is being said here, as only a real lawyer can explain:
Anyone reading this can copy this text and paste it on their Facebook Wall. I certainly agree with this statement, assuming you possess rudimentary pointing and clicking skills.
This will place them under protection of copyright laws. Who is “them?” That confuses me. “They” must be the cutters and pasters. I also don’t see any copyright protection in this statement. If you want copyright protection, say so or use this nifty symbol: ©. You can also claim a trademark with this: ™. The bad part is that these only protect the rights you actually have. They don’t create rights. For example, if I quote from Moby Dick on my Facebook wall (as I might do to show how brainy I am), I don’t have any copyright protection just because I claim I do.
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. Who the hell uses the word “communique?” Did James Bond write this? Also, what action do we fear that Facebook will take “against” us? A drone strike? I know of no police powers granted to Facebook. Perhaps we fear that Facebook will show our posts to someone. Here’s a suggestion: Don’t post anything that you don’t want people to see.
The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. I’m not sure what the prohibited actions are, but they must be the actions “against me” that Facebook may take. I’m also curious about the students under Facebook’s direction or control. This brings to mind a cadre of brain-washed college kids spending their days reading Facebook posts and then informing Mark Zuckerberg of all the juiciest details. If these people exist, I fully understand the desire to limit their powers. Oh, “aforementioned” is an excellent lawyerly word.
The content of this profile is private and confidential information. Now, this is problematic. You see, when you sign up for Facebook, you agree to all the Terms of Service, which are quite detailed. You probably didn’t read them. I know I didn’t. It’s doubtful that our posts are considered private or confidential. This explains the Privacy Settings on our accounts. I suggest that you don’t post confidential information. For example, I don’t recommend posting nude photos of yourself, unless you are a reasonably attractive woman. In that case, post them now using this disclaimer as protection. Also, please send me a link to your profile, so that I may see if your protection was effective.
The violation of my privacy is punished by law (UCC 1 1-308 1-103 and the Rome Statute): This is my favorite part. The UCC is the Uniform Commercial Code, a set of uniform statutes regulating commercial transactions. Every state has adopted the UCC at least to some extent. Its application to Facebook is a legal mystery. Here is what Article 1-308 says:
1-308. Performance or Acceptance Under Reservation of Rights.
(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.
This statute is often cited by conspiracy theorists or other folks on the fringe as giving one the right to do anything “under protest.” For example, some folks will sign their tax returns and cite this section, believing that they haven’t really agreed to pay their taxes or that they have somehow reserved the right to challenge the IRS’s taxing authority. I won’t bore you with all the legal niceties, but the UCC only applies to certain commercial transactions. I took classes in law school about the UCC and remember a good deal about it. The UCC just won’t help you here.
Article 1-103 is even less applicable:
1-103. Supplementary General Principles of Law Applicable.
Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, Bankruptcy, or other validating or invalidating cause shall supplement its provisions.
I don’t even know what to say about this one. All it says is that the UCC doesn’t replace any other law unless it specifically says so. If that gives you any comfort, so be it.
The Rome Statute: The only Rome Statute of which I am aware involves the jurisdiction of the International Criminal Court to prosecute Crimes Against Humanity, genocide and the like. If someone of the ilk of Slobodan Milosevic hacks your account, you may have something here, but it’s doubtful. Although Facebook taking action against you might be offensive, you may have a hard time convincing the International Criminal Court that it rises to the level of a war crime.
Sadly, my conclusion is that this disclaimer, for all its flowery language and copious statutory citations, provides no real protection against use of your photos and posts. Read the Facebook Terms of Service or the Facebook Data Policy. Those will give you some guidance on your agreement with the evil Zuckerberg.
So, if you’re wanting to post inflammatory status updates like advocating erotic literature for children or threatening to kill someone, you may not have the protection you think you do. It would be wise to think before posting, especially if you are, say, in the job market. An even better idea may be to just delete your account entirely.
I’m sure some other lawyer will read this and disagree. I might even get sued. Nevertheless, I stand by my analysis.
Of course, all is not lost. I am, after all, a lawyer. I’ve composed my own disclaimer which you are free to cut and paste:
Under the authority of the International Court of The Hague, I hereby expressly and forever reserve my privacy rights as granted under the Declaration of Independence, Magna Carta, Hammurabi’s Code and any and all other applicable law whether foreign or domestic. By posting on Facebook, I do not waive any and all such rights which are hereby expressly reserved unto me, my heirs, successors, agents, legatees, grantees, lessees, designees, devisees, divorcees and/or assigns. Nothing contained herein or therein shall be construed as such a waiver and any and all persons whomsoever, whether living or dead, reading this disclaimer are hereby forever estopped from so claiming. Should any such person or entity attempt to violate any or all such rights, those persons or entities shall be subject to garnishment of their wages and seizure of their chattels. I furthermore claim copyright, trademark, service mark and any and all other intellectual property rights in and to any and all posts on my Facebook wall, regardless of origin, authorship or preexisting claims to ownership. Facebook is hereby strictly forbidden from challenging or taking exception to any of the statements made in this disclaimer.
Now that I think about it, you’re NOT free to cut and paste this. See that little copyright symbol at the bottom? I told you: I’m a lawyer.