Blogging, Privacy and the New Facebook

Filed as Guides on September 23, 2011 12:19 pm

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Over the course of this column, we’ve talked a great deal about privacy, both legally and ethically, and how it intersects with blogging. We’ve looked at the problems with anonymous blogging, privacy and email and even some of the false privacy-related legal threats a blogger might face.

However, privacy is a very thorny issue, even more so than most areas of law online. The reason is that much of what we think of as privacy law is actually decided on a state level, meaning in the U.S. alone there is effectively 50 interpretations of privacy law. This says nothing, obviously, about the international implications.

But privacy issue for bloggers is about to get a lot thornier than even that, or at least a lot more visible. At its F8 conference, Facebook announced a new API that is going to make it easier for people to share more things with their Facebook friends, including sharing things that they did not decide, at least on an individual level, to put out there.

Combine this with its already-promised new buttons for websites, including “read”. “watch”, etc. and it’s easy to see how the issue of privacy will likely be brought into focus again for bloggers.

So, no matter what you think of the new Facebook features and tools, it’s important to be aware of the potential legal and ethical implications of using them and, to that end, it’s worth taking another look at privacy.

The Basics of Privacy

Though, as mentioned above, the rules vary from state to state, one thing that is more or less true is that once a person makes a fact public, no matter how embarrassing this fact is, others are able to report on it and repeat it without fear of being liable for an invasion of privacy. In short, once a person puts information about themselves out there, it is out there.

Beyond that, privacy law generally follows a set of guidelines where one can be held liable for doing the following things:

  1. Publicly disclosing
  2. a private fact
  3. that is offensive to a reasonable person and
  4. is not a matter of “legitimate” public concern

Specifically, this is the law in California but it’s a good template for most other jurisdictions as well.

The sentence is broken apart that way to illustrate the four elements that have to be met. Let’s break them apart in more detail here:

  1. Public Disclosure: The fact must be given to a third party. However, it doesn’t have to be many people or even more than one, just proof that someone else read the information.
  2. A Private Fact: The fact must be private, meaning of a personal nature and not previously disclosed. Basically, this can be almost anything reasonably considered personal.
  3. That is Offensive to a Reasonable Person: The fact must put the person in a negative light. Saying, for example, someone donated a large sum of money to starving orphans wouldn’t be offensive but saying they suffer a severe mental disorder would be.
  4. Not a Legitimate Public concern: Finally, the fact can’t be of any legitimate public concern. For example, outing a Congressman for philandering is a matter of public interest, but doing the same for a private citizen probably isn’t.

The question is clear though, what does all of this have to do with Facebook? It seems almost inevitable that the new Facebook tools will cause at least some people to have private information about themselves revealed and considering bloggers, through the tools Facebook will provide, may be a part of that, it sets the stage for a privacy showdown. in the near future.

The Landscape for Bloggers

The good news is that, as a blogger, your risk of being sued, especially successfully, for a privacy violation due to one of the new Facebook tools is seemingly very low. The reason is that the user will have to authorize your site to send out the updates.

Even if they don’t realize fully what they’re doing or make a mistake that reveals information, that permission should serve as enough protection to you, and indeed Facebook.

This is especially true considering Facebook’s legendary Terms of Use and other user agreements that shield it from virtually all liability.

There might be issues if a site did something deceptive that would cause someone to reveal information they didn’t intend, but Facebook’s permissions screen seems as if it would make that difficult.

Still, as long as bloggers stay above the boards with this, its unlikely there will be any significant privacy issues, at least legally. The real concern would be a backlash from the community against the tools and it seems that there is already at least some such backlash brewing.

The Bigger Privacy Concern

Unfortunately, the bigger privacy concern actually comes from the opposite side, the side of being a user.

Though granularly giving approval for everything you shared might have been a pain, it also prevented some embarrassing moments. However, with the upcoming changes, it’s at least possible that you’ll reveal information about yourself that you didn’t intend simply because updates are going out without any action on your part and for relatively mundane things.

However, legally at least, it will still be seen as you putting the information on the Web. After all, you agreed to Facebook’s terms and you approved the app to do exactly what it said. As such, you’re responsible for what it puts out there.

Worse still, if you do put something out there, since you placed made it public, you can’t legally prevent others from spreading it further. If you don’t want the world to know about your guilty pleasure bands or your obsession for a bizarre TV show, you need to be careful what you agree to.

Once that personal information is out there by your hand, it is gone and you can’t get your privacy regarding it back.

Bottom Line

The best advice I can give anyone regarding these new tools is to take it slow. Rushing in to share everything is a stupid move and, likewise, a webmaster who rushes to embrace the new tools wholeheartedly my find themselves not at the cutting edge of a movement, but at the stabbing edge of a pitchfork.

Go slow, find your comfort zone and let the world find theirs. Then you can decide what’s the best way to use these tools with your site as well as within your life.

This is very much uncharted territory, even for Facebook, so only the most foolish would dare to rush in…

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

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