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SES Toronto Speaker Mini-Interview: Mark Rosenberg

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Mark J. Rosenberg
, Of Counsel to Sills Cummis & Gross’ Intellectual Property Practice Group, has been providing clients from a wide variety of industries with legal advice for the past 20 years. With special emphasis on Internet Marketing legalities, he is able to contribute unique perspective on paid keywords, online advertisements, and domain names that expands our framework as marketers in this digital day and age.

Next month, Mark will be speaking at Search Engine Strategies Toronto on a rather newsworthy panel, Facebook Feeding Frenzy: Targeting Opportunities, Privacy Challenges. In between prepping for the session and drafting privacy policies for his own clients, Mark was able to share a candid interview with aimClear. Questions ranged from Facebook TOS to the social network’s bestial qualities, if any. Let’s take a look at what he had to say.

| aimClear: Bashing Facebook’s privacy policies is all the rage in mainstream media. From users’ standpoint, is the complaint a valid legal argument in light of Facebook’s terms of services?

In my opinion, the problem is not with Facebook’s privacy policies and terms of service. They are relatively straight forward. The problem is the default settings on user accounts, which are typically set to be public. Changing these settings can be difficult as they are not always easy to find, they are hidden behind several layers of information, and multiple changes need to be made in order to make a user’s account more private. Throw in the fact that many users don’t bother to look at these settings, and you have lots of information unknowingly being made public. On the other hand, I do not believe that users have a valid legal claim against Facebook so long as Facebook complies with its stated policies. The policies place the onus on the user to make things private. Under the law, if the user accepts these policies, then the user can’t complain when Facebook follows them.

| aimClear: Are there associated matters of civil law that trump Facebook’s TOS, to the point where any alleged violations trump the users having signed off on FB TOS?

In general, parties cannot contract around something that is illegal. In other words, if the law forbids a certain act, two parties cannot agree that the law will not apply to their dealings. I do not see anything like that in Facebook’s TOS. However, if Facebook violates it TOS or privacy policy whether intentionally or negligently, then Facebook could be subject to legal penalties.

| aimClear: Has Facebook been receptive, in your experience, to complaints regarding protected marks in ads or triggering ads?

In my experience, Facebook has been cooperative in assisting trademark owners whose marks are being infringed on Facebook whether it is in ads, user names or on FB pages.

| aimclear: What are Facebook’s top 5 most insidious privacy holes?

Default settings, default settings, default settings, default settings and default settings.

| aimClear: What will you be discussing during your upcoming SES presentation in Toronto?

I will be discussing the legal risks related to social media marketing and how to minimize those risks, with a focus on privacy issues.

| aimClear: If Facebook were an animal, what would it be and why?

It would be a dog. Both can provide companionship and service. However, if not watched carefully, they both can do damage, whether it be to the mailman or neighbor’s lawn (dog) or the user’s private information (FB).

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