Technically, it does violate the ToS. Doesn't matter if people put it in their profile. All you have to say is, 'I didn't see their profile.' and then the whole 'passive consent' is thrown out the window.
Not to mention the sharing of private messages violates Internet Laws in both Canada and the U.S.A.
You're not allowed to share any sort of private conversation without direct permission from the person. How do I know? I've had someone related to me attempt to hand out private messages to family members to harm my reputation. Couple days later, he was charged.
All in all, a disclosure means nothing. Sure, they can say 'looking at it gives passive consent' but all you have to simply say is you didn't see theyr profile, therefor the 'passive consent' isn't valid.