Facebook’s most recent privacy policy amendments have provoked rampant public outrage – with predictable demands from parents, schools and privacy advocates to restrict and ban the site – however the best solution may not be regulation but informed choice.

Gilbert + Tobin partner Peter Leonard told ALB the social networking site does offer sufficient choice for users about the level of their privacy protection, but the options are too complex to understand and too onerous to access. They confound Facebook users, some argue deliberately, so that the appearance of choice is mere illusion.

Begin with default privacy settings – which automatically make an increasingly broad range of information available to a wider audience. Options to alter these generous default settings are then made so complex they become almost inaccessible. “Google’s privacy settings are easily accessed and altered in a simple three click process,” Leonard offered by way of example. “For Facebook you must toggle through 50 different privacy settings with over 170 options to get privacy exactly the way you want it.”

Facebook’s privacy statement has in the past five years grown from 1,000 words to nearly 6,000 words today, and is now a lengthier read than the US Constitution.

This complexity is made all the more dangerous by the Facebook demographic, the two ends of the age spectrum that demand relative simplicity. “Facebook’s fastest growing user group is over 55s, who generally have very limited technology literacy,” Leonard said. “The traditional large users are early teens who either don’t know about privacy or increasingly, don’t have a high tolerance of complexity in managing privacy settings.”

However, it may be unfair to suggest Facebook’s complex privacy settings is motivated entirely by mercenary aims. In part, the complexity reflects the changing nature of privacy. “Traditionally and to a large extent even now, people consider privacy as something they can turn on and off,” Leonard said. “However it is much more multi-faceted; people have different spheres of interaction, with different preferences on what they want to share with each.”

Responsibility to protect privacy is a shared one, and users need to scrutinise their own privacy passivity with the same vigour as they apply to criticising Facebook’s invasion. “There has been too much finger-pointing between the five key stakeholders - bewildered parents, concerned schools, the government in election year, the industry, and service providers like Facebook.”

Dealing with Facebook privacy concerns through regulation is not only fanciful – the site now attracts over 400 million users – but also dangerous. “As an example of regulation in its simplest form, parents or schools may ban or restrict children’s usage of Facebook,” Leonard said. “If they do this, kids will still continue to use these sites through other avenues, but will not have learnt how to address privacy and cyber safety concerns.”

“The temptation for government, especially in election year, to grand stand with some action is strong,” Leonard said. However, he told ALB that he hoped social pressure compels Facebook to redraft it privacy policies to meet users’ expectations.  The recent public uproar has already prompted Facebook’s founder Mark Zuckerberg to admit the site may have overstepped the mark and should simplify its privacy controls.

The privacy trepidation highlights the long-standing tension in the industry between appeasing users and maximising profit. But never has the profit incentive been so tempting. “Facebook outstrips any other system before it, in the range and richness of the information it holds about us,” Leonard said. “This information is naturally highly valuable.”

The recent Facebook scare may be just the first battle in the long war for privacy moving forward. “Regulating online behavioural advertising and cyber safety will create significant work in privacy law in future years. Work will really pick up with the integration of entertainment, internet and telecommunication,” Leonard said. “The era when your computer is linked to your television, which is linked to the internet, which is also linked to your mobile phone, is only 12-24 months away. This will provide a very rich image of your daily life, interests and activities, and the richer the information the more valuable it becomes, and the greater need for people to know how it will be used and how to control its use.”