Internet Class Action filed in California: Consumer Class Action Litigation Update.
Our Internet lawyers continue to monitor the recent class action filed in California. Attorney Antony Stuart of the Stuart Law Firm of Los Angeles, California discusses California case involving the exploitation of minors' names and likenesses for commercial purposes on Facebook and the Internet without the proper consent. Consumer class action litigation for internet activities continues to increase.
- Facebook routinely uses the names and likenesses, the images, the photographs, profile pictures, really, to use a Facebook term, of minors for commercial purposes, that is, to make money without proper consent.
- California requires that in order to use someone’s name or likeness for a commercial purpose you must obtain their consent to do it. And in the case of a minor, that requires the consent of the minor’s parents.
- Facebook is making money in violation of California Law and exploiting minors.
Damien Allen: Good afternoon and welcome to Internet Law Radio. My name is Damien Allen, and joining me today on the phone is Tony Stuart of the Stuart Law Firm of Los Angeles, California. Good afternoon Tony, welcome to the program.
Antony Stuart: Thank you, Damien. It’s good to be with you.
Damien Allen: It’s a pleasure to have you with us today. We’re discussing the Cohen vs. Facebook case today. Could you give us a little overview of what the complaint is and what’s going on with this case?
Antony Stuart: Sure, the complaint asserts that Facebook routinely uses the names and likenesses, the images, the photographs, profile pictures, really, to use a Facebook term, of minors for commercial purposes, that is, to make money without proper consent. And the law in California requires that in order to use someone’s name or likeness for a commercial purpose you must obtain their consent to do it. And in the case of a minor, that requires the consent of the minor’s parents. Facebook does not do that, and so, Facebook is making money in violation of California Law and exploiting minors.
Damien Allen: Now, how are they using these in a commercial sense?
Antony Stuart: Well, they sell advertisements, what we might call endorsement ads, where they will communicate that a particular Facebook member (a minor, a child), communicate that that particular minor (let’s call him Billy), that Billy likes this product, that Billy indicates that he likes a particular soda pop or a video game, then Facebook has that information and can utilize it to sell an ad for a soda pop manufacturer or a video game manufacturer to a friend or a friend of a friend of Billy. And the message, the endorsement ad says, Billy likes this product or Billy likes Pepsi. And that is an ad. It’s an ad that Pepsi can pay Facebook to make for it. And in that sense, Facebook is using Billy’s name and often his profile picture, his photograph, to sell a product to Billy’s friends.
Damien Allen: Now, this is a California Statute that states you must have expressed permission from the owner of this profile or the owner of this likeness to use both the likeness and the name. Is this a statute that is nationwide or is this strictly a California Statute?
Antony Stuart: This is a California Statute. The statute requires prior consent. It’s a statute that’s very common throughout the states of the union. You’ll find the same language, the same kind of statute, probably in most American states.
Damien Allen: Now is Facebook mounting a defense stating that by using our service you’ve implied that your giving consent to use your image and your likeness and you click the like button so we can do whatever we want because you’re using our service?
Antony Stuart: I’m not sure what Facebook’s defense to the case is. Facebook hasn’t made a formal appearance in the case yet. Based on statements I’ve read, a Facebook spokesperson responding to the case, it’s not clear how they might defend their conduct here. The statements are generally to the effect that we believe that the allegations of the complaint are baseless, and I think in another statement the spokesperson said something to the effect that the complaint misconstrues or misunderstands the intent of the privacy laws that the complaint is based upon. Those statements seem rather generic and don’t persuade me that there is a particular defense that Facebook has to the case.
Damien Allen: Is the fact that Mr. Cohen, in this case, is a minor child, is that extremely important in this particular case? Is there a line being drawn between whether it’s an adult whose profile images or likes are being used in these ads as opposed to a minor, such as Mr. Cohen is?
Antony Stuart: Well, yes. The law certainly makes a distinction between a minor and an adult. In order to use the name and likeness for a commercial purpose of a minor, you need the consent of the minor’s parent and not in the case of an adult. So, this case addresses the issue of the use of minors’ names and likenesses. Although, I do believe that Facebook does not adequately obtain consent from adults for the use of their names and likeness also. But that is another case and probably will be decided at another time.
Damien Allen: There’s an awful lot of social networking sites, Facebook probably being the most popular of all the, you know, Facebook, MySpace, Twitter and such, and there’s a lot of ads on all of them and you may see images scrolling across the top of the screen, this person is on this site join these people now, is this the same type of thing that’s going on in other social networking sites as well? Is this something that will trickle down from this lawsuit that we may a MySpace suit come up as the same way?
Antony Stuart: I’m not sure. I mean, because of Facebook’s tremendous success (it has 500 million members), I think other companies are out there trying to emulate Facebook and may be trying to replicate it’s processes, and to that extend, I think it’s quite possible that they may run into the same legal problem and run afoul of privacy protections that Facebook has here. What I think though is somewhat unique to Facebook is that rather than accumulate personal information and then sell it to others. Facebook’s model seems to be to hold the information and keep it within Facebook, and so rather than selling personal information to advertisers so that the advertisers can take it and figure out how to target an ad at a particular person or group of people, Facebook creates the ads and claims to be auctioning its own ads to people who want to utilize all of the personal information that Facebook has and keeps to itself in order to sell their products. So, it’s a model that certainly was originated by Facebook. It runs into some privacy problems as we see in this case, in the case of minors, and perhaps the case will nip in the bud this problem of getting proper consent for the use of endorsement ads by minors so that it doesn’t begin to be replicated by other sites across the internet.
Damien Allen: Now, this is a class action lawsuit. How far reaching will this suit become, and what are the ramifications to Facebook if this goes to trial and they are found to be in the wrong?
Antony Stuart: Well, the purpose of the lawsuit is to stop the practice, and the scope of the case extends to all kids ostensibly because, under federal law, they’re required to be 13 to be entering into agreements to become a Facebook member. The age is 13 to 17 across California. So, it’s a California case, and these are California kids because they’re covered by California Law. I would expect that the case would, and this is the purpose of the case, stop the practice. Facebook has to figure out how to get proper consent if it’s going to be using kids’ names or their likenesses for a commercial purpose, and obviously that will have ramifications for Facebook on the internet and, therefore, on an international basis. That should be way that the company will operate from this point forward into the future everywhere.
Damien Allen: And I know from my own personal experiences on Facebook, you expect that people are who they are, who they say they are and the age or age bracket that they say they’re in, but unfortunately when it comes to making a profile all it takes is a little manipulation of the year of your birth and an 8 year old can suddenly become a 14 year old. Is there anything in your opinion that can be done to better police how people are set up within Facebook as far as verifying ages and stuff like that?
Antony Stuart: Well, I’m sure there is. I’m sure there are technological means to better ensure that people are who they say they are. I would think that in the case of children, it might be important, and I think that’s really where this case takes us, to be sure that you have at some level the involvement of and approval of the children’s parents. And I think that makes sense. I think that’s a good policy. I think it’s something that we need to promote and encourage, and since the law in California when it comes to commercial use of name and likeness requires parental consent, I think that this is a good first step toward involving parents in issue of is this really a child, is the stated age correct, and what are we going to permit this child to do, and what are we going to permit Facebook to do with the child and the child’s name and his rights of his person.
Damien Allen: Now, you said that Facebook hasn’t formally made a statement on this or answered the complaint on this. What is the status of the case, and what are we looking at going forward?
Antony Stuart: The case will be served soon. We’ve had to submit petitions to have the parents of the two class representative minors approved by the court. Once that’s done, then the complaint will be served on Facebook, and Facebook will have 30 days to respond to the complaint. So, we are at the point now where we’re just about to, in fact we may be undertaking today, to actually serve Facebook with the complaint. Once that’s done, there will be a response to the complaint, could be a response involving a legal challenge to some aspect of allegations of the case, or it may just be an answer to the complaint, and then the case proceeds then into the discovery phase where we learn information relevant to the case from Facebook and Facebook from the plaintiffs, and then we proceed toward the trial of the case. The process I would expect should take between one and two years. My expectation, based on the Facebook spokesperson’s comments about the case, my expectation is that Facebook will make an argument that the old rules of privacy that protect minors in this circumstance shouldn’t apply because this is a new technology. In other words, I expect Facebook’s position to be, because this is a technology that was never contemplated by the California Legislature, the protections of the law for commercial appropriation of the names and likenesses of minors shouldn’t apply in the digital context, in the social networking world. And I think that would be a terrible mistake and that’s sort of the wrong approach. I think that rather than make exceptions to established principles of privacy law in order to accommodate new technologies, technologies should be adapted to conform to established rules of privacy.
Damien Allen: I think that pretty much sums up everything that the case is important about that the upcoming technologies or new technologies should fit within the laws that exist, you shouldn’t just say, well, it’s a digital technology, its brand new and then everything should conform to what we are now.
Antony Stuart: Right.
Damien Allen: The law is there to protect minor children. The law is there to protect people and their information and their likeness and their being, and just because you come up with a new technology and go, well, ah, see, the law doesn’t apply to us because we’re new, the law applies to everybody across the land, the law applies to everybody within the jurisdiction that the law was written for and that’s that, and if you have questions about it, you should look at the question first and then go, this is what we need to do. How can we make this work? Then work that framework into it, instead of going, nah! I don’t care, whatever.
Antony Stuart: (laughs) Exactly.
Damien Allen: We’d like to thank you very much for joining us today Tony and explaining this case to us.
Antony Stuart: Truly, Damien, it’s been a pleasure.
Damien Allen: And it’s been a pleasure having you with us today. We’ve been speaking with Tony Stuart, the plaintiffs’ counsel for Cohen vs. Facebook. Tony Stuart works for the Stuart Law Firm in Los Angeles California. You’ve been listening to Internet Law Radio. My name is Damien Allen. Everybody have a great afternoon.
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