Facebook Says Users Can’t Show Harm in Face Tagging Class Action

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

In a class action lawsuit alleging Facebook improperly collected and retained biometric data from its users, Facebook struck back arguing that the users cannot show they were harmed in any way.

Lead plaintiffs in the class action accused Facebook of unlawfully collecting and storing biometric data from its users through its facial recognition and tagging feature.

The plaintiffs alleged that Facebook violated the Illinois Biometric Data Privacy Act, as well as violated users’ privacy by not obtaining consent to use their data.

The plaintiffs say that use of their biometric data has resulted in tangible and intangible injuries, including loss of their property right to the data.

In its latest motion to dismiss the case, Facebook argues that users have not established how Facebook’s use of their biometric data lowers the value of users’ facial recognition data.

“Even assuming that ‘biometric identifiers are property’ — which they are not — plaintiffs do not explain how the value of their biometric identifiers has been diminished due to tag suggestions,” said Facebook in its motion. “Plaintiffs do not claim that they could sell their biometric identifiers, that they would sell them, or, critically, that the buyers would now pay less for their identifiers because of Facebook’s conduct.”

Facebook points out that it does not sell users’ likenesses for commercial benefit.

Additionally, Facebook argues that the allegation that it violated users’ right to their biometric data is not sufficient without showing that they were harmed by this violation.

“Plaintiffs have not claimed that the mere collection or storage of their alleged biometric identifiers caused them to suffer serious emotional harm; to be caught in a compromising situation that materially affected their reputations, livelihoods or relationships; or to experience identity theft,” said Facebook in its motion to dismiss the class action. “Presumably that is because (1) they did not suffer harm and/or (2) such claims would create a sea of individualized issues, barring class certification.”

Facebook also argued that even if the users have a right under the Illinois Biometric Data Privacy Act, that does not mean they have standing to bring their class action lawsuit.

“Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to vindicate that right,” pointed out Facebook in its motion.

The class action lawsuit has survived Facebook’s motion to dismiss the case because Facebook argued the Illinois law did not apply. The class action is a consolidated set of cases.

The plaintiffs are represented by Jay Edelson, Rafey S. Balabanian and J. Dominick Larry of Edelson PC, Shawn A. Williams, David W. Hall, Paul J. Geller, Stuart A. Davidson, Frank A. Richter, Christopher C. Martins, Mark Dearman, Travis E. Downs III and James E. Barz of Robbins Geller Rudman & Dowd LLP, Corban S. Rhodes, Joel H. Bernstein and Ross M. Kamhi of Labaton Sucharow LLP, Frank S. Hedin of Carey Rodriguez Milian Gonya LLP, and Francis A. Bottini Jr., Albert Y. Chang, Yury A. Kolesnikov of Bottini & Bottini Inc.

The Facebook Biometric Face Tagging Class Action Lawsuit is In re: Facebook Biometric Information Privacy Litigation, Case No. 3:15-cv-03747, in the U.S. District Court for the Northern District of California.

UPDATE: On Sept. 28, 2017, Facebook filed a motion for dismissal in a California federal court, arguing that the plaintiffs suing Facebook have failed to allege any actual harm resulted from the company’s use of facial recognition technology.

UPDATE 2: On Jan. 26, 2018, Facebook tried to shake claims in two Facebook biometric class action lawsuits. They argued that the plaintiffs failed to show that any “common harm” had been inflicted on a group of individuals because of Facebook’s practice of storing facial scans.

UPDATE 3: On March 16, 2018, Facebook Inc. filed motions for summary judgment in a bid to end two putative class action lawsuits accusing the social network of unlawfully using facial-recognition technology to collect users’ biometric data without their consent.

UPDATE 4: On April 16, 2018, Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.

UPDATE 5: On Jan. 30, 2020, Facebook reached a $550 million settlement with consumers who claim that the social media giant violated Illinois’ Biometric Information Privacy Act by using facial recognition on users’ photos without their consent.