Frankfurt Kurnit Klein & Selz

February 8th, 2011

Facebook Moves to Dismiss Complaint Based On Use of Minors’ “Likes”

A recent class action on behalf of California minors takes aim at Facebook for its practices regarding the use of Facebook members’ names, likenesses, and preferences. The plaintiffs allege, among other things, that Facebook encourages its users to communicate “likes” of goods and services under the pretense that it contributes to the social nature of the site, while Facebook actually promotes users to share “likes” in order to publicize the information in advertisements that Facebook sells to the merchants of the given goods and services. This “apparent endorsement” by a Facebook user (who is recognizable to that user’s “Friends”) generates higher click-throughs and greater revenues to the paying advertiser and, in turn, Facebook. See Cohen v. Facebook, Inc. No. BC444482 (Sup. Ct. Cal., Aug. 26, 2010). The plaintiffs charge that nowhere in Facebook’s Statement of Rights and Responsibilities do members consent to such uses. In fact, plaintiffs argue, Facebook egregiously engages in the use of the names, likenesses, and preferences of minors without obtaining consent from the minors’ parents or guardians. Specifically, the plaintiffs allege violations of California’s right of publicity statute, the right of privacy pursuant to the California Constitution, and California’s unfair competition law.

Facebook contends that the action must be dismissed, and in support of its demurrer to plaintiffs’ complaint, has responded by arguing that the plaintiffs’ claims are barred by the federal Communications Decency Act (“CDA”), which provides immunity for an interactive computer service from certain types of federal and state law claims that seek to treat the interactive computer service as the publisher or speaker of information provided by another information content provider. Facebook charges that all of the content at issue - particularly a Facebook user’s name and likeness and opinions about content he or she “likes” - is voluntarily created and provided by the user, not Facebook. Facebook simply organizes this user-created content in a manner that associates a user’s “like” with advertising that is displayed on the Facbeook pages of that user’s Friends. Facebook further asserts that this organization and repackaging by Facebook of user content merely amounts to the performance of “editorial functions,” which courts have expressly held does not constitute participation in the creation of the content by the website or disqualify it from protection under the CDA. Facebook has also asserted several defenses to the publicity and privacy rights claims, including that the content is “newsworthy” and that the plaintiffs cannot claim a reasonable expectation of privacy where they voluntarily shared all of the information at issue on a social networking site.

A hearing on Facebook’s motion is currently scheduled for March 17, 2011. If ultimately decided, the case could shape the ways in which social networking sites can use their members’ information and content.

While there is no question that social media presents a valuable marketing opportunity, privacy advocates and some consumers question whether the use of social media platforms for advertising purposes takes unfair advantage of social media users, who likely do not foresee or intend that their digital social life will take on a central role in advertising. The case comes at a time when marketers are becoming ever more creative with their use of social media and when questions concerning the propriety of such use of individuals’ online activities are at the forefront of regulatory interest.

For more information on this lawsuit, social media or any other advertising or marketing law issues, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.

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