Facebook Dodges Class Action Lawsuit over Ads Featuring Minors

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A proposed class action lawsuit accusing Facebook Inc. of using the likenesses and names of children in third party advertising without consent was dismissed on Wednesday, ending nearly three years of litigation surrounding the matter.

The plaintiffs alleged that, by using pictures and names of underage children in advertisements without prior consent, Facebook violated California state laws that prohibit use of a person’s name or likeness for commercial purposes without authorization from that person, as well as the California Family Code. Facebook , arguing the plaintiffs had suffered no real harm and the federal law, the Children’s Online Privacy Protection Act (COPPA), preempts the California Family Code.

U.S. District Judge Richard Seeborg dismissed the class action lawsuit, pointing out that if the plaintiffs conceded that Facebook’s Statement of Rights and Responsibilities (“SRRs”) that purport to govern the use of the Facebook site are enforceable then the SSRs “include written consent to the challenged use of names and profile photos, such that the underlying damages claims are not viable.” The judge stated, “Because plaintiffs have not articulated a viable legal theory on which the SRRs could be found unenforceable, the complaint must be dismissed.”

Judge Seeborg dismissed the plaintiffs’ claims brought under the California Family Code. “While contracts made by minors generally may be disaffirmed … the basic presumption is that minors do have the power to enter into binding contracts,” the judge wrote. However, “Plaintiffs’ arguments largely flow from an opposite, and incorrect presumption, that minors generally do not have the power to contract,” the judge stated. “Facebook users have, in effect, simply granted Facebook the right to use their names in pictures in certain specified situations, in exchange for whatever benefits they may realize from using the Facebook site. … Accordingly, plaintiffs have shown no basis for finding the SRRs to be void.”

With regard to the claims surrounding COPPA, Judge Seeborg noted “Plaintiffs seek declaratory relief that their claims are not preempted under COPPA. Facebook argues there is no existing controversy because it is not presently asserting a COPPA preemption defense in this action. Given Facebook’s prior invocation of COPPA, there likely would be a sufficient basis for declaratory relief on the point were there otherwise a live controversy remaining. In light of the disposition of Count I above, however, any declaration in this action regarding possible COPPA preemption would be purely advisory.”

Judge Seeborg rejected Facebook’s argument that the plaintiffs “have failed to present facts showing they suffered any legally cognizable harm from the alleged conduct,” pointing out that the plaintiffs may have been able to establish a constitutional injury. However, since the plaintiffs did not establish any legal basis for their claims, the judge dismissed the class action lawsuit.

The plaintiffs are represented by Steven A. Katz and Aaron M. Zigler of Korein Tillery LLC and Lee Squitieri of Squitieri & Fearon LLP.

The Facebook Minor Ad Class Action Lawsuit is C.M.D., et al. v. Facebook Inc., Case No. 3:12-cv-01216, in the U.S. District Court for the Northern District of California.