A California judge has granted Facebook’s motion to dismiss a class action lawsuit accusing the platform of age and gender discrimination against Facebook users through its advertising practices.
In her order granting the dismissal last week, U.S. Magistrate Judge Jacqueline Scott Corley said the plaintiff has not shown that she was negatively affected by Facebook’s ad-targeting practices.
According to Judge Corley, lead plaintiff Neuhtah Opiotennione’s allegations failed “to support a plausible inference that she suffered an injury-in-fact as a result of Facebook’s advertising tools.”
“Plaintiff has not met her burden of alleging facts sufficient to support an inference of injury in fact,” Judge Corley wrote in her dismissal order. “She contends that because she identified advertisements that could not appear in her News Feed because of her age or gender she has suffered an injury in fact, namely, being subject to discrimination. These allegations, however, are merely a generalized claim of ‘unequal treatment’” and don’t “rise to the level of an … injury in fact.”
In addition, Judge Corley wrote that though Facebook argued many reasons why the plaintiff’s claim fails, “the Court declines to address them given its conclusion that Plaintiff has not even made it past the first step.”
However, the case was not dismissed with prejudice, meaning the plaintiff could file an amended complaint within 30 days of the dismissal order.
In her class action lawsuit, Opiotennione had said she was interested in receiving ads and information about financial services opportunities via Facebook ads, “and otherwise being treated equally to other Facebook users in all aspects of her use of the benefits she receives from Facebook.”
However, she claimed, she was denied such information based on her age and gender because advertisers are allowed to select restricted audiences when targeting their ads.
Opiotennione had identified three specific ads not displayed in her Facebook feed, allegedly because of her age and gender — one for a rewards-based credit card and two for bank accounts she would have been interested in.
The plaintiff also claimed she has searched Facebook for housing and financial services opportunities and was interested in loans and insurance information. But she said she was denied the opportunity to see related advertisements because the platform had stopped her from seeing them.
The audience selection tool used by advertisers requires them “to specify the parameters of the target audience of Facebook users who will be eligible to receive the advertisement” based on age, gender and location, according to the class action lawsuit.
The default setting is for Facebook users age 18 to 65-plus of all genders, but the platform encourages advertisers to narrow that range, according to the order. Therefore, Facebook users who aren’t within the selected audience won’t be shown that specific ad.
Facebook’s algorithm uses several data types, including data on how certain types of ads have performed in the past, as well as the ongoing performance of ads, to determine which Facebook users will be shown which ads, according to the judge’s order. The algorithm relies on the age and gender of Facebook users to determine which users will actually receive any given advertisement.
According to Judge Corley’s order, one of the ads cited by Opiotennione was from a military organization offering loans to military personnel of certain rank.
“The only injury Plaintiff — who does not allege to be in the military, let alone an officer with an eligible rank — can have suffered because of being denied the possibility of having that advertisement appear in her News Feed is the existence of the age-specific restriction,” Judge Corley wrote. “Under Plaintiff’s theory, any person who was excluded from the possibility of receiving that advertisement because of her age would have standing. Not so.”
“Having concluded that Plaintiff has not alleged facts that support a finding that she suffered an injury in fact, Facebook’s motion to dismiss for lack of standing must be granted,” Corley wrote.
Do you think Facebook users are discriminated against when it comes to the platform’s advertising practices? Let us know your thoughts in the comments below.
Opiotennione is represented by Jahan C. Sagafi, Adam T. Klein, Michael Litrownik, Peter Romer-Friedman and Pooja Shethji of Outten & Golden LLP; Jason R. Flanders of Aqua Terra Aeris Law Group; Matthew K. Handley and Rachel Nadas of Handley Farah & Anderson PLLC; and William Most.
The Facebook Ad Discrimination Class Action Lawsuit is Neuhtah Opiotennione v. Facebook Inc., Case No. 3:19-cv-07185-JSC, in the U.S. District Court for the Northern District of California.
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