It was Shakespeare who asked “What’s in a name?” If you and your clients keep tabs on the latest legal developments in social networking and reputation management, you’ll want to read the FTC’s complaint against the website Jerk.com – how’s that for a name? – and follow the case as it goes to trial. According to the complaint, operators of the site improperly used personal information from Facebook to label millions of people a “Jerk” or “not a Jerk,” told consumers they could pay $30 for a “membership” that allowed them to manage or dispute what was said about them on the site, and then didn’t honor that promise. Oh, and did we mention they charged people $25 just to email their Customer Service Department?
A bit of the backstory: Between 2009 and 2013, respondents Jerk LLC and John Fanning ran Jerk.com, which included more than 75 million unique profiles. They promoted the site as a place where people could “find out what your ‘friends’ are saying about you behind your back to the rest of the world!” Users could create profiles about other people by using the “Post a Jerk” feature.
The company claimed the site included only user-generated content: “Opinions, advice, statements, offers, and other or content made available through jerk.com are those of the respective authors and not of Jerk LLC.” But the FTC says the company actually created the vast majority of Jerk profiles itself by improperly using Facebook’s application programming interfaces (APIs) – tools developers use to interact with Facebook – to harvest information without consumers’ consent and in violation of Facebook’s policies. According to consumers, a lot of the photos and other information publicly available on Jerk.com had originally been posted on Facebook using controls that limited access to a select group of the consumer’s choosing.
Profiles on Jerk.com included the subject’s first and last name and fields where people could enter the subject’s age, address, phone number, email, and Twitter, MySpace, LinkedIn, and eBay account information. The page also featured buttons where any user could vote “Jerk” or “not a Jerk.” In addition, profiles included a comment field. Just a few examples of the kind of remarks on the site: “Omg I hate this kid he\’s such a loser” and “just can go f**cking slaughter herself . . . Nobody in their right mind would love you . . . not even your parents love [you].” Others posted about the person's physical appearance or purported sexual orientation.
According to the FTC, more than 25 million profiles included a photo of the person, including millions who appeared to be kids. What’s more, Jerk.com profiles showed up in search engine results when family members, prospective employers, and others looked for a person’s name.
Not surprisingly, people were eager to challenge what had been posted about them on the site – and that’s one way the company made money. As the company advertised, “. . . use Jerk to manage your reputation and resolve disputes with people who you are in conflict with.” According to the complaint, Jerk.com sold subscriptions for $30 that supposedly gave users access to “premium” features, which people thought would allow them to alter or delete a Jerk profile about them. If that quid pro quo weren’t troubling enough, the FTC says in many cases, Jerk took people’s money, but gave them nothing in return.
What if people tried to contact Jerk to take down their photo or a picture of their child? According to the complaint, Jerk charged a $25 fee just to contact the company’s Customer Service Department. Many consumers were understandably hesitant to share their credit card number with the company. But even if resourceful consumers tracked down their registered agent or web host to insist that Jerk removed the content, the FTC says the company didn’t follow through. In one instance cited in the lawsuit, the respondents ignored a request from a sheriff’s deputy to remove a Jerk profile that was endangering a 13-year-old girl.
The complaint alleges that Jerk.com falsely claimed that information on its site was created by users and reflected their opinions about the profiled person when, in fact, the vast majority of Jerk profiles were populated with content taken from Facebook without users’ explicit consent and in violation of Facebook’s policies. What’s more, the complaint charges that Jerk.com didn’t give people an easy way to request deletion of their Facebook data. And even if they did ask to have it deleted, the FTC says that the respondents failed to honor those requests.
The FTC also alleges that Jerk conveyed expressly or by implication that people who paid the $30 membership could dispute what was posted about them on the site. But according to the complaint, consumers who forked over the cash didn’t get what the company promised.
The case is headed for trial before an Administrative Law Judge.