At present, the two organisations have not commented further.
One of the reasons why the Facebook advertising situation is so ambiguous is a lack of compensation. It would be easy for actor Ben Affleck to press charges against an advertiser using his endorsement without permission, because he normally gets paid for that sort of thing. "You usually see cases of this sort brought by celebrities," McGeveran said, "because if you use a celebrity name or image in a way that suggests an endorsement without their consent, they can point to the value of their endorsement."
For ordinary people, it's more complicated. "How much is my endorsement worth, even to my friends?" McGeveran speculated. "I can't really demonstrate the same kind of economic value that celebrities have. That leaves things like emotional damages, or other kinds of damages that are much more difficult to prove."
He said one way around this could be if irked Facebook members teamed up. "In California, there's a $750 damages-per-offense in the statute. In that case, every time this happened, considering it could be $750 of damages, I suppose that if you got a group together, that could start to add up." But even a small degree of legal damages doesn't make something illegal any less, well, illegal.
Facebook users technically do "consent" to participating in Social Ads when they sign up as "fans" of a brand. The grey area here is whether that consent is adequate. Facebook representatives have insisted that it is. Some experts aren't so sure. "One of the issues will be whether the consent was obtained under circumstances where people understand what they're agreeing to," Murphy said. "How many times have you clicked through 'I consent' licenses on software and Web sites? I write those for a living, and I don't read them."
As a result, Facebook could make it clearer to users signing up for advertisers' fan pages that they are consenting to have their names and profile photos used alongside those companies' ads within their friend networks. "I wonder whether Facebook has considered maybe making its consent acquisition product more robust, making it clear to people when they become a 'fan' what it is they're in for," Murphy said. "If I were an advertiser, or as a lawyer who represents advertisers, that's one of the things I would want to ensure before I agreed (to a contract)."
Of course, that's a slippery issue, because if Facebook makes the user consent agreement more obvious, joining an advertiser's fan page could look far less attractive to prospective users. That, in turn, could make advertising on Facebook less appealing to marketers.
To add to that, it's likely that the legal burden in Social Ads will be on advertisers, not Facebook itself. "Maybe you visited (a fan page) and decided you hated it," McGeveran suggested. "Advertisers will have to be very careful with how they configure these Social Ads."
A poorly thought-out ad campaign could easily backfire. If John Q. Public signed up as a 'fan' of an acne medication brand on Facebook, for example, and the advertiser implied erroneously in a Social Ad that the medication had cured John Q. Public's nasty facial breakout, that would be a problem. (Not to mention an embarrassment for Mr. Public.)
To the legal system, Facebook and other social networks a whole new ballgame. We're not going to see answers until actual court cases surface. Until then, some say Facebook ought to focus on the more immediate issue: The money, and whether the "trusted referral" ads actually work. "I think people are sort of getting lost in the ethics and privacy of it," said Deborah Schultz, a social media marketing consultant. "I question more its effectiveness."
