Facebook Class Action Says Ad Platform Lets Advertisers Discriminate

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A putative class action lawsuit is challenging certain functionality in Facebook’s ad platform which allegedly allows advertisers to discriminate unlawfully

Plaintiffs Karen Savage of New York and Victor Onuoha and Suzanne-Juliette Mobley of Louisiana claim the Facebook ad platform promotes discriminatory advertisement for housing and employment opportunities.

By providing a forum for these advertisements, Facebook violates the federal Fair Housing Act and the Civil Rights Act of 1964, they allege.

According to this Facebook ad platform class action lawsuit, Facebook offers advertisers the option of excluding certain audiences from viewing their Facebook ads.

Plaintiffs say that with the click of a button, advertisers can exclude from their audience Facebook users who match characteristics like “African American (US),” “Asian American (US),” or “Immigrant.”

“Facebook’s advertising platform allows advertisers to target and exclude specific Facebook users to see their advertisements. This targeting and exclusion is based on Facebook users’ ‘affinity’ groups, which Facebook uses to identify a person’s ethnic, gender and other affinities based on their Facebook activity,” according to the plaintiffs.

As described in the class action lawsuit, a Facebook user’s affinity group is determined not by the user’s own reporting of any relevant characteristics like race, gender, etc. but instead by their Facebook activity itself.

“A user’s affinity may be determined by their Facebook profile and interactions with organizations and other users on Facebook,” the plaintiffs allege.

Facebook purportedly claims these distinctions are made specifically based on “affinity, not ethnicity.” But the plaintiffs say these affinity groups can be used by advertisers as a proxy for classifying Facebook users by criteria such as race, gender, family status and national origin.

Plaintiffs in the Facebook class action lawsuit say advertisers can exploit these affinity groups to prevent their content from being viewed by certain Classes of persons – Classes entitled to protection from discrimination under the Fair Housing Act and the Civil Rights Act.

For advertisers setting up content on Facebook, the Facebook ad platform first allows advertisers to target particular affinity groups, such as those with particular interest in seeking employment or buying or renting a home.

The advertiser then gets the option to “Exclude People,” the plaintiffs say, according to certain characteristics. These characteristics allegedly include several different classifications based on race, sex, religion, family status, and national origin – all of whom are protected under federal anti-discrimination law, the plaintiffs argue.

Plaintiffs say two journalists from ProPublic were able to purchase an ad on the Facebook ad platform that was targeted at house hunters but excluded from anyone with an African-American or Asian “affinity.” They say Facebook approved the ad only minutes after it was ordered.

Facebook’s stated policy provides for removing discriminatory advertising upon notification of noncompliance by government enforcement agencies, plaintiffs say. But they point out that under the current Facebook ad platform, victims of discrimination may never realize they’ve been discriminated against “because the discrimination occurs with the ads they do not see.”

The plaintiffs say they plan to add individual Facebook advertisers as defendants as they are discovered. For now, Facebook Inc. is the sole named defendant in this discrimination class action lawsuit.

If certified as proposed, the plaintiff Class will represent all Facebook users who have not seen an employment- or housing-related ad on Facebook within the last two years because the ad buyer used the “Exclude People” function in the Facebook ad platform to exclude persons on the basis of race, color, religion, sex, familial status, or national origin.

They are seeking court orders granting injunctive and declaratory relief, awards of statutory damages and civil penalties, and reimbursement of court costs and attorneys’ fees.

The plaintiffs are represented by attorneys William Most of the Law Office of William Most and Jason R. Flanders and Sara M.K. Hoffman of Aqua Terra Aeris Law Group.

The Facebook Discriminatory Ad Platform Class Action Lawsuit is Suzanne-Juliette Mobley, et al. v. Facebook Inc., Case No. 3:16-cv-06440, in the U.S. District Court for the Northern District of California.