In what may represent a new wave in an interesting challenge to the viral nature of social media marketing, a recently filed putative class action asserts a right of publicity claim against Facebook in connection with the service's "Like" and "Friend Finder" features.
J.N. v. Facebook, Inc., No. 11-cv-2128 (E.D.N.Y.) (complaint) is an action brought by the parent of a minor user of the Facebook social networking site, alleging that the minor's name and likeness was appropriated for commercial advantage without the consent of his parents, as required by New York Civil Rights Law § 50. Section 50 provides that a living person's name, portrait or picture may not be used for advertising purposes without the person's written consent, "or if a minor of his parent or guardian."
Although many Web sites and online service require users to
affirm that they are over the age of 12 (the age below which the
requirements of the Children's Online Privacy Protection Act
kick in), relatively few restrict users between the ages of 13 and
18 from their sites and services. The question arises, do users in
this age group have the capacity to contract, for example, to
assent to online terms of use that may contain an express or
implied waiver of publicity rights? The issue of a minor's
capacity to assent to such terms has been litigated rarely and
not definitively addressed in the online context.
The complaint targets the functionality of Facebook's
"like" button, which offers users the ability to indicate
their endorsement or approval of a Facebook page or event. The
complaint alleges that when a minor user "likes" a
Facebook brand page or RSVPs to an event, the service dislays the
minor's name and likeness both on the "liked" page
and in an advertisement displayed on the home page of the
minor's friends. This, the complaint asserts, violates Section
50, and entitles the plaintiff (or plaintiffs, if a class is
certified) to relief under New York Civil Rights Law § 51,
including gross revenue and profit attributable to violations of
§ 50.
The complaint also targets the Facebook "Friend Finder"
functionality on similar grounds, contending that the names and
likenesses of minor users of Facebook have been displayed to other
users in order to encourage them to user the functionality to
solicit their friends and contacts to join the service, all to the
benefit of Facebook and its advertising revenue.
The complaint asserts that although the Facebook terms of use
purport to allow the service to utilize a user's name or
likeness for advertising purposes when the "like"
function is utilized, assent to those terms is not sufficient
consent to such use. Further, the complaint asserts that even if
assent to the terms of use on the part of an adult does amount to
consent to commercial use of the adult's name and image, it
does not constitute consent on the part of the parents of minor
users as required by Civil Rights Law § 50.
This is not the first lawsuit to raise the issue of consent of
minor users to Facebook's use of their names and likenesses for
advertising purposes, although previously filed lawsuits have
asserted violations of California law. David Cohen v. Facebook,
Inc., No. BC 444482 (Cal. Super Ct., Los Angeles Cty), alleges
claims under California Civil Code § 3344 (requiring parental
consent for the use of a minor's persona in advertising), the
California Constitution, Art. 1, section 1 (right of privacy), and
California Business and Professions Code §§ 17203 and
17204 (unfair competition law). See also Meth v. Facebook, Inc.,
No. BC45479 (Cal. Super. Ct. Los Angeles Cty) (raising similar
claims as to a minor user of Facebook). [Motion papers
seeking to consolidate the David Cohen and Meth cases, available here, contain the complaints in both
cases.]
Note also, that a separate federal lawsuit filed in California
alleges similar claims as to adult users, see Robyn Cohen v. Facebook, Inc., No. 10-cv-05282
(N.D. Cal.). Facebook's motion to dismiss that action on the ground,
among others, that the users consented to the use of their names
and likenesses, was filed in January and a ruling is currently
pending.
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