Can you opt out of Facebook’s Terms of Use?

Toronto Privacy lawyer, Gil Zvulony spoke to Dan Misener of CBC Radio regarding a Facebook status update that has gone viral (radio segment embedded below). The update purports to prevent Facebook from using the user’s intellectual property and private information. These types of updates have been going around for some time.  The latest looks like this:

Due to the fact that Facebook has chosen to involve software that will allow the theft of my personal information, I stated: at this date [insert date] in response to the new guidelines of Facebook, pursuant to articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data drawings, paintings, photos, texts etc…. published on my profile and my page. For commercial use of the foregoing my written consent is required at all times.
Those who read this text can do a copy/paste on their Facebook wall. This will allow them to place themselves under the protection of copyright.
By this statement, I tell Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, or take any other action against me on the basis of this profile and or its content. The actions mentioned above also apply to employees, students, agents and or other personnel under the direction of Facebook.
The content of my profile contains private information. The violation of my privacy is punished by the law (UCC 1-308 1-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All members are invited to publish a notice of this kind, or if they prefer, can copy and paste this version.
If you have not published this statement at least once, you tacitly allow the use of elements such as your photos as well as the information contained in the profile update.

Do these Status Updates have any Legal Effect?

Do these status updates help protect your information?  Do they have any legal effect? The short answer is no.  The reason is that a person cannot unilaterally change the terms of a contract.  A contract, by definition, requires the agreement of the parties.

When people first sign up to Facebook they are asked to agree to a contract or as Facebook calls it: “Terms“.  This type of contract, like most contracts people enter today, is called a “standard form contract“.  This means that the terms are standard to all who wish to sign up.  The terms are not negotiable.  It’s a “take it or leave it” option.  Facebook’s contract contains many terms regarding how Facebook uses your information and intellectual property.  It also contains terms on how the contract between the user and Facebook may be changed.

But Facebook Changes Their Contracts Unilaterally?

From time to time, Facebook changes its Terms. How can Facebook change it’s terms unilaterally, when a user cannot?  Because the User agreed to this amending formula at the time of signing up. In this sense, Facebook’s amendments are not unilateral.  The Facebook Terms state that in most cases they will give a user notice that the Terms will change and that  “Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.”  In other words, by using Facebook, you agree to allow them to change their Terms.

How to Protect Your Intellectual Property From Facebook?

Users who are concerned about how Facebook uses their data, should take some time to learn about Facebook’s policies.  Facebook has become more transparent in this regard.  Learning about Facebook’s policies may alleviate some concerns.

Ultimately, Facebook is a business.  And just like any business who makes you an offer, you can take it or leave it.  If you are unhappy with Facebook’s Terms, a better option than pasting legally meaningless jargon is to cancel your Facebook account.