Page 11 - Public Citizen News November-December 2013

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November/December 2013
11
Public Citizen News
By Sam Jewler
The moment you click “like”
on a company’s Facebook profile,
you may become an unpaid am-
bassador for that company to all
of your Facebook friends.
It happens through a program
called “Sponsored Stories,” in
which Facebook creates an ad
when a user indicates he or she
likes the advertiser. The ad dis-
plays the Facebook member’s
name and image in a manner that
suggests the person endorses
that advertiser. The program was
challenged in a class-action law-
suit,
Fraley v. Facebook
, filed in
March 2011 under California laws
prohibiting misappropriation of a
person’s likeness and unfair busi-
ness practices.
In late 2012, the parties tenta-
tively agreed to settle the case
on terms quite favorable to Face-
book. In early May 2013, Public
Citizen urged the U.S. District
Court for the Northern District of
California to reject the proposed
settlement, chiefly because it
would allow Facebook to con-
tinue to use minors’ likenesses
in ads without parental consent
— a practice that violates privacy
laws in seven states. The judge
nonetheless
approved
Face-
book’s settlement on Aug. 26.
Public Citizen is now appealing
that decision to the U.S. Court of
Appeals for the Ninth Circuit.
“The settlement is not fair and
adequate because it violates state
privacy laws and allows Face-
book to continue to use minors’
images for commercial gain with-
out their parents’ consent,” said
Scott Michelman, the Public Citi-
zen attorney litigating the appeal.
Public Citizen is representing
five parents with children who
were between 13 and 16 at the
time of the settlement and live
in Virginia, Tennessee, New York
and California — all states where
it is illegal for Facebook to use
a minor’s likeness for advertis-
ing purposes without parental
consent. The practice also is il-
legal in Florida, Oklahoma and
Wisconsin.
“The settlement has several
provisions that purport to protect
minors, but those protections all
require the children to take affir-
mative steps to provide Facebook
with information about their par-
ents,” Michelman said. “If the
kids don’t do that, Facebook will
use their images based only on
the child’s claim that his or her
parents gave consent — and a
child’s representation of parental
consent is no substitute for actual
parental consent.”
Under the agreement, Face-
book would pay $15 to each class
member, even though each per-
son’s claim is worth $750 under
California law. The settlement
provides that Facebook will cre-
ate a mechanism for users to opt
out of “Sponsored Stories,” but
the opt-out right is limited and
Facebook has agreed to abide by
opt-out preferences for only two
years.
Facebook’s privacy practices
have recently come under scru-
tiny in other respects. Another
Facebook ad program, called
“Sponsored Ads,” made head-
lines recently when the image
of a Canadian teenager appeared
in an ad on the social network
months after she had committed
suicide.
“The point of parental consent
laws is to interpose the decision
of a responsible adult between
the child and a large corporation
like Facebook that might exploit
the minors’ images for profit,”
Michelman said.
If Public Citizen prevails in the
appeal, the case will be sent back
to the district court for further
proceedings, which could in-
clude another attempt at settle-
ment or a trial.
Read more about our work
on the case at http://pubc.it/
FraleyvFbook.
“The settlement is not fair and
adequate because it violates state
privacy laws and allows Facebook
to continue to use minors’ images
for commercial gain without their
parents’ consent.”
Scott Michelman
Public Citizen attorney
Public Citizen Challenges Facebook Settlement
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