By Zoe Bedell – Edited by Sarah O’Loughlin
Brief for Appellants, Fraley v. Facebook, Inc., o. 13-16918 (9th Cir. Feb. 13, 2014)
Schachter Objector Appeal hosted by Citizen.org
In 2011, a group of Facebook users filed a class action lawsuit against the company seeking relief from Facebook’s practice of using the names and images of its users in sponsor advertisements without those users’ consent. On February 13, objectors to the proposed settlement in Fraley v. Facebook, led by the nonprofit advocacy group Public Citizen, appealed the district court’s decision, arguing that the approved settlement violated the law of multiple states in allowing Facebook to use images of minors without their parents’ consent.
Ars Technica provides an overview of the lawsuit, settlement, and appeal. The Washington Post’s analysis provides perspective on the legal issues involved.In March 2011, several plaintiffs filed a class action lawsuit in California on behalf of a putative class claiming harm from Facebook’s ‘Sponsored Stories’ advertising offering. Complaint, Fraley v. Facebook, Inc., No. 111-cv-196193 (Cal. Super. Ct. Mar. 11, 2011) complaint hosted by Scribd. The plaintiffs objected to Facebook’s practice of pulling the images of users who had interacted with various brands (such as by clicking ‘Like’ or playing a game) and integrating those images into ads, which suggested the user’s approval of the brand. Facebook’s motion for dismissal was denied, and the parties negotiated and submitted a settlement to the court for approval in June 2012. Schachter Objector Appeal, at 6–7. Though this settlement was rejected, the court eventually approved a substantively similar one in August 2013, reports CNET.
The settlement created a $20 million fund from which eligible Facebook users would receive $15 each, named plaintiffs would receive a larger incentive award, and plaintiffs lawyers fees would be taken. The remainder of the money would be paid to various privacy advocacy groups supporting the lawsuit, including The Berkman Center at Harvard Law School, notes Forbes. Facebook also agreed to change its privacy policies to include a blanket consent to Facebook’s advertising practices. While the company has since announced the end of the ‘Sponsored Stories’ campaign, it maintains the right to use Facebook users’ names and images in similar programs.
Several plaintiffs raised concerns with multiple parts of the settlement, but their appeal focused on one issue: the consent of teenagers between the ages of thirteen and eighteen. The objectors argue that Facebook’s new privacy settings allow Facebook to “continue to use minors’ images in advertisements based on minors’ representations that their parents have consented rather than any affirmative expression of consent by the parents themselves.” Id. at 10. Appellants assert that the settlementviolates state laws that require parental consent before a company may use a minor’s images.In approving the settlement, the lower court ignored these arguments, reasoning that accepting this objection would require them to adjudicate the merits of the case. Fraley v Facebook, No. C11-1726 RS, 2013 WL 4516819 at *8 (N.D. Cal, Aug. 26, 2013). Technology & Marketing Law Blog explains the decision.
The court also speculated that the federal Children’s Online Privacy Protection Act (“COPPA”), which regulates the collection and use of personal information for children under 13, may preempt any state regulations in the area. Id. at *9. Ultimately, the objectors are asking the appeals court to vacate the district court’s approval of the settlement. Schachter Objector Appeal at 39.