Facebook Users Seek Cert. in Class Action over Privacy Concerns

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A Class of Facebook users have asked a judge to certify a class action lawsuit alleging that the company’s misleading user privacy assurances have led to subsequent claims of breach of contract and fraud.

When individuals sign up to use Facebook, they must agree to not provide any false information to Facebook, lead plaintiffs Katherine Pohl and Wendy Marfeo explain. In exchange for the personal information gained from users, Facebook promises to protect the privacy of that information, the plaintiffs allege.

However, according to the Facebook class action lawsuit, when users click on a third-party advertisement from Facebook, the individual’s username is transmitted to the advertiser, thus breaching contract.

Pohl and Marfeo add that Facebook has assured members a number of times that their privacy policy does not allow then to share private information with their advertisers. The security of user information was discussed in a blog posts made by Facebook’s Director of Communications and Public Policy, and was also made clear by Facebook CEO Mark Zuckerburg in 2010 where the company representatives assured members that their information was safe.

Facebook has designed individual Facebook pages to contain URLs (unique resource locators) to include a user’s Facebook username. So for example, the URL for that gets directed to a third-party advertising click would be www.facebook.com/FirstnameLastname. The third party advertiser can then see the Facebook usernames and are provided with the identities of the users, according to the class action lawsuit.

The plaintiffs allege that Facebook knowingly provided false information about the security of user data, and many users have commonly experienced this issue when they have clicked on third-party advertisements.

The recent motion for certification of the Facebook privacy class action lawsuit seeks to ask two questions as follows:

“1. Primary issue: Whether this Court should certify the following class: All Facebook users in the United States who, at any time after May 28, 2006, clicked on a third-party advertisement displayed on Facebook.com and configured to redirect the user to an external website, and which resulted in Facebook’s capture of a referer header containing that user’s Facebook user ID and/or username?”
2. Subsidiary issue: May each class member and each qualifying ad click be ascertained from Facebook’s ad click database?”

In September of this year, Facebook filed a motion to dismiss the privacy class action lawsuit, saying that the plaintiffs had no evidence to support their claims that individuals’ usernames were transmitted to third parties. Facebook also claimed that the plaintiffs could not provide evidence that the username-sharing was used to inflict harm on the plaintiffs.

Facebook has maintained that because the plaintiffs have not shown that they have been harmed by any third party in receipt of their information, they cannot show that they have sustained injury from Facebook’s practice.

Pohl and Marfeo state in their recent motion for certification of the Facebook privacy class action lawsuit that they do have evidence that the third party advertisers received information for Facebook re-directs that included class member user IDs or usernames.

“Facebook has offered no legal authority for the proposition that plaintiffs must show that their advertisers ‘logged’ this information, ‘actually used’ it, or even were aware of it, to establish a claim for breach of contract or fraud,” read the motion for certification. “Even if these were deemed to be individual questions, at most they would pertain to damages, and as such would be legally insufficient to defeat class certification in and of themselves.”

This Facebook privacy class action lawsuit was originally filed in 2010 when a number of lawsuits were filed for similar concerns, including a consolidated case. The consolidated case was dismissed in November 2011 and then partially revived in 2014 when the Ninth Circuit reversed and remanded two claims pertaining to California laws regarding breach of contract and fraud, with similar claims against Facebook’s privacy policy actions.

Pohl and Marfeo are represented by Michael W. Sobol of Lieff Cabraser Heimann & Bernstein LLP, Charles Hyunchul Jung and Kassra Powell Nassiri of Nassiri & Jung LLP and Matthew Joseph Zevin of Stanley Law Group.

The Facebook Privacy Class Action Lawsuit is In Re: Facebook Privacy Litigation, Case No. 5:10-cv-02389, in the U.S. District Court for the Northern District of California.

UPDATE: On June 29, 2016, Facebook defeated users’ bid for class certification in a long-running lawsuit that alleges the social media giant disclosed users’ personally identifiable information with third-party advertisers.