Facebook/Breastfeeding Part 3: Revenge of the Facebook TOS
I didn’t intend to do another Facebook/Breastfeeding post so soon, but a new wrinkle in the whole controversy just occurred. Facebook recently changed their Terms of Service. Previously, they claimed rights to use your content as they see fit, but you could terminate those rights by having your account deleted. Now, not only can they use your content if your account is closed or deleted, but they can sublicense your content as well.
How does this impact the Facebook/Breastfeeding controversy? Well, suppose a mother uploads a photo of herself breastfeeding. Facebook, regarding this content as sexually explicit, deletes the account. However, Facebook retains rights to all content uploaded, including the breastfeeding photo. Facebook can now sell that photo to a stock photo agency who can sell it to someone else to be used in an ad campaign. This mother might find her nursing photo being used to advertise baby formula. Imagine the outrage the mother would feel to see herself in the ad with the tag line "It’s just as good as mother’s milk."
What would the mother’s options be? Pretty limited. She could try to sue Facebook, but she likely wouldn’t get very far. You see, that same Terms of Service also states that you’re agreeing to Mandatory Arbitration. In short, she will have to travel to a state that the company chooses, face an arbitrator chosen by the company, who likely rules in favor of the company over 90% of the time, won’t be able to subpeona any documents from the company, won’t be able to appeal any decisions to a real court, and – even if by some quirk she wins – won’t have any legal teeth to get any money from the company. In other words, Facebook has all but declared themselves the winner if you decide you want to challenge them legally.
This might solve the "Breastfeeding Photos on Facebook" controversy, but not in the expected way. I don’t know why anyone (especially breastfeeding mothers) would want to upload photos to Facebook knowing that those photos could be sold by Facebook to some other company for any possible use without any compensation or recourse given to the user. Perhaps it is time for another social network, one with better Terms of Service and better operating practices, to rise up and displace Facebook.