Tuesday, December 20, 2011

Facebook Loses Motion To Dismiss in Federal Court re Alleged Breaches of Users' Rights of Publicity

A  lawsuit has been brought by a group of plaintiffs who allege that Facebook misappropriated their names, photographs, likenesses and identities for use in paid advertisements without proper consent.

The lawsuit is over a type of social ad called a “Sponsored Story,” which is created when a Facebook user “likes” a product or service and is shown to that user’s friends. In other words, if you “like” a brand, you become a spokesman for it.
Facebook's motion to dismiss was denied by the Federal Court in California.
The plaintiffs’ allege the ads violated their statutory “right of publicity” under California law. It protects against the non-consensual use of another’s likeness, voice, name for advertising or selling purposes.
One of Facebook’s arguments in favor of its motion to dismiss was that the ads were covered by the “newsworthy” exception of the California law, which tracks the First Amendment and allows for the broad use of another’s likeness in connection with any news, public affairs, or sports broadcast or account.
According to Facebook, the ads are newsworthy (and thus exempt) because Facebook users are “public figures” to their friends, and “expressions of consumer opinion” are generally newsworthy. Frankly, this argument strikes me as at best over-reaching, and at worst, disingenuous. Based on this logic, as social media becomes even more widely adopted (we can imagine a day in the not too distant future when everyone in America is on Facebook or its equivalent just as pretty much everyone today has a telephone).  According to Facebook's logic would this mean that at some point everyone becomes a "public figure"? That just can't be correct.

For me, the more compelling, though perhaps less sexy argument, is the one around the Facebook terms of use (which at least today, seem to allow for such use). Here, there does appear to be some basis for Facebook's actions, though it seems the Court correctly identified enough questions and factual issues that require survival past the motion to dismiss and even summary judgment stages. (It seems that the terms of use may have  been changed at some point after the plaintiffs initially signed on to Facebook; interestingly this raises similar issues which governed the Facebook FTC consent decree concerning subsequent changes to Facebook privacy practices which were adopted without any affirmative consent from affected Facebook users; I need more facts of this case, but it seems similar dynamics may be in play.



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