Embedding Facebook into a web site

'Is it legal', 'can I do this' type questions and discussions.
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Chris K
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Embedding Facebook into a web site

Post by Chris K » Sat Mar 14, 2015 11:27 pm

Hello, I'm in the UK and I've a question about Facebook pages which I'd be grateful if someone could clarify.

Facebook provides the facility to embed individual public posts into a web site. Facebook says: "Embedded Posts let you add any public post from Facebook to your blog or web site." Up to now, I've always thought that anything published, including on Facebook, was subject to the author's copyright and couldn't be copied, unless it was a fairly short quote.

Facebook also provides the facility to embed a public Facebook page into a web site - it's called an Activity Feed. I'm not clear what Facebook's position is on embedding an Activity Feed - whether it's only OK if you embed your own Facebook page into a web site, or whether it's OK to embed anybody's public Facebook page into a web site.

Does the fact that it's embedded rather than copied make a difference?

Clarification would be appreciated, thank you.

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AndyJ
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Post by AndyJ » Sun Mar 15, 2015 10:44 am

Hi Chris,

You have raised an interesting question. Facebook operates under US law, but that would not protect a web site owner, or indeed anyone else, who might be sued for infringement in another country. On that basis I will try and answer this based on current UK and EU law.

You are right that creating an embedded link to something such as a comment or photograph from someone's Facebook page without permission, could amount to infringement. Technically speaking this is not 'copying' in the traditional sense, since the data would continue to originate from the Facebook server and would not be copied or stored on the second site. The only 'copy' is what appears on the end-user's computer screen or smartphone etc, and this would come into existence via the same process as if they had had gone directly to the Facebook page without visiting the second site. EU law allows this (temporary) copy on the screen as it is part of the technical process of operating the internet. What your question is referring to is the right of 'making something available to the public' which is another of the rights possessed by a copyright owner. Under UK law, this is referred to as communicating a copyright work to the public, but it amounts to the same thing.

There have been two recent cases in the Court of Justice of the European Union (CJEU) which looked at the subject of linking and embedding, and the Court decided that if the material was already being made available* to the general public, it did not infringe copyright for someone to hyperlink or embed a link to that material so that it appeared to a user to be coming from the second site. The court distinguished between the general public, and a restricted sub group of the public, for instance someone's Facebook friends who would be the only people able to legitimately access a Facebook page which was not public. Other types of site which would not be available to the general public would include those behind a paywall, and membership sites which required the use of a login and password in order to access them.

The lead decision by the CJEU was in a case known as Svensson and the principle was reinforced in a second case known as Bestwater. Both decisions have been criticised by a number of academics, but at the present time, they represent the law on the subject of linking and embedding.

So bringing the general legal situation to the specifics of your question, it would appear that linking to or embedding a public Facebook post or page would be legal, because the original material was already available to anyone who, perhaps after doing a Google search, was able to go directly to the same Facebook page or post. This would apply anywhere within the EU (and presumably the USA), but might not be legal is some other jurisdictions.

*Interestingly, in the Bestwater case, the Court said that it was immaterial whether or not the material had been placed on the original site with the owner's permission.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Chris K
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Post by Chris K » Sun Mar 15, 2015 11:57 am

Thank you for that explanation, AndyJ, which is very clear. Your explanation is much appreciated.

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