As social media matures and users become more concerned about the privacy of the information they publish online, New Zealand-based search engine app company Profile Technology, Inc. and Facebook are engaged in a legal battle stemming from a dispute over the right to use certain user data. The story first came to light in October 2012, when Profile Technology filed a complaint against Facebook alleging that the social media giant had, after entering into a contract with Profile Technology, breached the contract; interfered with Profile Technology’s business relationships; defamed Profile Technology; and committed unlawful, unfair and fraudulent business practices.
Profile Technology’s complaint sets forth a narrative beginning in 2008, when Facebook and Profile Technology entered into a contract that, according to Profile Technology, was partially written and partially implied by the conduct of the parties. This contract allowed Profile Technology to “crawl” Facebook’s public data in order to create what eventually became “Profile Engine,” a website that allows users to scan through public data of over 420 million Facebook users (making it, according to Profile Technology, “the second-largest social media network in the world”). Profile Technology’s “about” section of the site notes that, on Profile Engine, you can “chat to Facebook friends, browse your newsfeed, meet new people or find a date, all while listening to your favourite music and your friends’ playlists, completely free of charge!”
Profile Technology claims that, around October 13, 2010, Facebook terminated Profile Technology’s contract without notice; cut off Profile Engine’s access to Facebook data; and even de-friended Profile Technology’s founder, Christopher Claydon, from Facebook. This caused Profile Technology to lose business and lose value in the eyes of potential investors. The complaint alleges that Facebook’s actions were part of Facebook’s plan (with several other unnamed defendants) to “impede, interfere with, and expropriate the benefits of the Profile Engine developed by Plaintiffs without regard to Plaintiffs’ legal rights and to exclude Plaintiffs from their use and profit therefrom.” Profile Technology also claimed that Facebook defamed the company by telling Facebook users that links to Profile Engine were “spammy and unsafe,” adding that “Plaintiffs’ Profile Engine is safe and has nothing to do with spam and Facebook knows it.”
In February 2013, Facebook countered with a complaint of its own, which filled in some of the gaps missing from Profile Technology’s otherwise epic tale, and explained some of the facts from a different point of view. In Facebook’s complaint, Facebook notes that Profile Technology agreed to Facebook’s terms of use for both Facebook users and developers (there is no mention of any “implied” contracts). Further, Facebook does not mention terminating Profile Technology’s access in October 2010, but rather points out that Profile Technology claimed to have stopped accessing Facebook’s development platform at that time, due to a refusal to agree to a modification of Facebook’s developer terms of use concerning automated data collection. Facebook points out that, despite this claim, the Profile Engine has posted Facebook user data retrieved subsequent to October 2011. Facebook also notes that after October 2011, Profile Technology continued to make available to the public outdated Facebook user data, which is a violation of Facebook’s terms of use.
As Facebook describes, Profile Technology, while publishing Facebook user data, was not keeping this data current. This meant that pictures a user had deleted from Facebook remained viewable to any Internet user, links to websites with which users no longer wanted to be affiliated remained posted on users’ Profile Engine pages, and certain postings that users had wanted to erase from the Facebook world were memorialized forever. In November 2011, after receiving complaints from its users, Facebook revoked Profile Technology’s license to Facebook and demanded the deletion of all Facebook user information in its possession. As of the date of Facebook’s complaint over a year later, Profile Technology had yet to remove the outdated Facebook user information from its website, causing Facebook to seek an injunction for such removal.
As of this writing, neither case has been dismissed, although the parties may be negotiating a settlement. Whatever the outcome of the cases, it should come as some comfort to Facebook users that the company is fighting to keep its users’ private data out of the public realm. Nonetheless, cases such as this reinforce what should now be ubiquitous advice from parents, teachers and friends: don’t post anything online unless you want the entire world to be able to access it forever. After all, it should come as no surprise how few people and companies actually read and abide by online terms of use.