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Settlement Over Facebook’s Use of Members’ Images in Ads Should Not Be Approved, Public Citizen Tells Court

May 2, 2013

Settlement Over Facebook’s Use of Members’ Images in Ads Should Not Be Approved, Public Citizen Tells Court

Proposed Class-Action Settlement Violates Laws in Seven States That Require Parental Consent for Use of a Child’s Likeness

WASHINGTON, D.C. – A proposed class-action settlement with Facebook over ads featuring members’ images without their consent should be rejected because it violates laws in seven states that prohibit the use of a child’s likeness without parental consent, Public Citizen told a federal court today.

The settlement also should be rejected because the opt-out protection it offers Facebook users is limited and because the settlement would provide class members with a few dollars, or possibly nothing, while giving millions to attorneys, Public Citizen said in its filing with the U.S. District Court for the Northern District of California.

Public Citizen is representing six parents from around the country who each have children aged 13 to 16.

“Class-action settlements are supposed to compensate people for wrongdoing and deter the defendant from engaging in the bad behavior in future. This settlement does neither,” said Scott Michelman, the Public Citizen attorney handling the case. “If the settlement is approved, Facebook members will continue to be subjected to precisely the exploitative practices that this lawsuit was filed to prevent. That’s not a solution.”

Kim Parsons of Hermitage, Tenn., one of the objectors represented by Public Citizen, is a Facebook user who was notified that an ad was created using her 13-year-old daughter’s image. “I don’t want my daughter to be used in Facebook ads, and I don’t want to be used in Facebook ads,” Parsons said. “It’s unconscionable exploitation of children. Any settlement should ensure that children aren’t used in ads unless a parent consents.”

The lawsuit, filed in March 2011, stems from Facebook’s use of members’ images in ads, known in Facebook parlance as “sponsored stories.” When a Facebook member clicks a button to indicate he or she “likes” a company that advertises on Facebook, or engages in various other interactions with the company such as playing games or using Web applications, Facebook creates an ad that displays the Facebook member’s name and image in a manner that suggests the person endorses the product. Facebook does not seek the consent of members to use their images for advertising – or parental consent when the users are children.

The parties’ first attempt at settlement was rejected by the court in August 2012 because the proposed settlement lacked specificity about policy changes Facebook would make, didn’t address the issue of consent regarding minors and didn’t provide monetary relief.

The current settlement, proposed in the fall of 2012, should also be rejected, Public Citizen told the court today. Among the key flaws in the proposed settlement:

– The settlement does not require Facebook to stop using minors’ likenesses without parental consent, a practice that violates laws in California, Florida, Tennessee, Virginia, Wisconsin, New York and Oklahoma.

– The proposed changes to Facebook’s policies are insufficient. Facebook has agreed to permit users to opt out of its ad program with respect to particular content or categories of content, but users would not be able to opt out of being used in ads altogether. Additionally, users could opt out only after being featured in additional “sponsored stories” – in other words, after again suffering the harm that this lawsuit was aimed at stopping.

– The policy changes under the settlement agreement would be required for only two years, after which Facebook could resume the same activities that led to this lawsuit.

– Proposed relief is capped at $10 for each Facebook user, although each class member’s claim is worth $750 if, in the absence of a settlement, the class were to prevail in litigation. Additionally, it is very unlikely any of the users will receive even this small amount of money, because the proposed settlement fund is too small to cover the estimated 70 million-plus class members. When fees and expenses are deducted, the amount is about 17 cents per class member.

“Asking children for a representation of parental consent is not equivalent to obtaining parental consent,” said objector Margaret Becker of Brooklyn, N.Y., whose 15-year-old daughter has seen her likeness used in a Facebook ad to which she did not consent. “It’s not good enough.”

In addition to Parsons and Becker, Public Citizen is representing Arlington, Va. resident John Schachter (on behalf of himself and his 13-year-old son); Los Angeles, Calif., resident Judy Reidel (on behalf of her 13-year-old son); Berkeley, Calif. resident Ann Leonard (on behalf of herself and her 13-year-old daughter), and Annandale, Va., resident Michael Carome (on behalf of his 16-year-old son). (Leonard serves on Public Citizen’s board and Carome is a Public Citizen staff member.)

Working with Public Citizen to represent the objectors is attorney Jay Rorty of Santa Cruz, Calif.

For more information on the case and Public Citizen’s objection, click here.