Social Networking for Jerks: FTC Goes After Site for Scraping Facebook Content

In the 1979 Carl Reiner film The Jerk, a new phonebook is delivered and Steve Martin, playing the title character, rejoices that “I'm somebody now! Millions of people look at this book every day! This is the kind of spontaneous publicity—your name in print—that makes people. I'm in print! Things are going to start happening to me now.” As we all know, a quarter-century later, things have changed. Getting one’s name publicized takes only a few seconds—if not to millions of people, at least to whomever we’re connected on social media. But, according to the Federal Trade Commission, jerks still abound. On April 2, 2014, the FTC issued an administrative complaint against Jerk, LLC, a company doing business in Hingham, Massachusetts under the name Jerk.com. The site was a mean-spirited social network of sorts where users could anonymously vote whether the person in a particular user profile was a “Jerk” or “not a Jerk.” According to the complaint, from 2009 to 2013 the website contained between 73.4 and 81.6 million unique consumer profiles. While some were created by users, the FTC alleges that in reality the vast majority of the user profile content was lifted from Facebook. The complaint’s key allegation is a parade of horribles, in terms of user privacy:

At times material to the complaint, Jerk had profiles for consumers of all ages, including children. … An estimated 24.5 to 33.5 million profiles contained a large photo of the profiled subject. An estimated 2.7 to 6.8 million Jerk profiles contained a photo of a child who appeared to be under age 10. Some photos featured intimate family moments, including children bathing and a mother nursing her child. Often, Jerk profiles featured photographs of children, which were collected without their or their parents’ knowledge or consent.

This scraping of data apparently occurred even where the Facebook users availed themselves of Facebook’s security settings. In addition to the Jerk/not a Jerk voting buttons, users could also add information about the person in the profile, and—inevitably—users posted insensitive and cruel statements in these comment sections. Jerk.com acquired access to the Facebook information by registering as a Facebook developer, and then ignoring Facebook’s contractually-imposed rules on use of user content. Instead, it downloaded names and photographs of millions of users, and used that content to create its own user profiles. However, according to the FTC, language on the Jerk.com site made it appear to its visitors that the user profiles had been created by individuals, rather than by the site. To make money from its enterprise, Jerk.com allowed users to buy subscriptions, often on the promise that they would then be able to manage the negative information about them. Jerk.com also made it difficult for users to contact it with complaints, and refused to respond to take-down demands, in one notable instance “ignor[ing] a request from a sheriff’s deputy to remove a Jerk profile that was endangering a 13-year old girl.” The FTC complaint alleges two counts for deceptive acts or practices in violation of Section 5(a) of the Federal Trade Commission Act. The first is for deceptive representation regarding the source of user profile content on the site, and the second is for deceptive representation about memberships. A hearing is scheduled for January 2015. While we wait for a ruling in the FTC v. Wyndham Worldwide case, where the extent of the FTC’s authority under Section 5 to enforce data security is at issue, the Jerk.com case reminds us that there are many serious cases of consumer deception that are directly within the agency’s wheelhouse. This is especially true now that the Supreme Court has fully and finally slammed the door on consumer standing to enforce false advertising under the Lanham Act (see recent post here). In many cases, it remains up to the FTC to ensure that consumers are not…wait for it…being jerked around.