Facebook is facing another class action, this time in federal court in Illinois, charging that it used minors in its advertising. At least two or three other such cases are pending – federal actions in California and New York, and at least one state lawsuit filed in Southern California.
In each of these cases the allegations are essentially the same. Facebook takes user names, pictures and preferences, using its "Like" buttons, and then merges them with paid sponsorship and advertising to target specific advertisements – sometimes referred to as 'enhanced' or 'premium' advertisements. The user's name or likeness can be 'pushed' to his or her Facebook friends – presumably, people whom the user has specifically permitted to be able to see such information. Also presumably, by becoming 'friends' those people have in turn manifested a desire or interest to know the individual's preferences - what he or she likes, his or her opinions and what he or she is doing.
Aside from issues of free speech, voluntary opt-in and parent consent - especially where the individual is a minor and his or her name, image or likeness is used in an ad (and it is not clear or settled whether these are in fact all 'advertisements') - a question arises as to whether Section 230 of the 1996 Communications Decency Act insulates Facebook from liability as a neutral communications platform that does not control what individuals do or offer – so long as they act in accordance with Facebook's terms and conditions. However, some commentators point out that in 2007, the Ninth Circuit Court of Appeals held in Fair Housing Council v Roommates.com LLC that Roommates.com was not immune when its users posted advertisements that were illegal under the Fair Housing Act. That said, in the Roommates case the ads were structured to some extent, and categories of content and information for the ads were encouraged, if not solicited, populating the database of advertising for roommates using the website. Facebook may well argue that simply providing a "Like" button and making it available for use is no different from a brand owner making a gadget or widget icon available should a user want to place it on its site. The 'platform' – in this case Facebook – has no part in the user's decision; nor is it offering to customise the user's "Like" decision in any way that could be construed as editing or adding new content as a publisher.
It remains to be seen whether any such arguments would convince in court.
For further information on this topic please contact Joseph I Rosenbaum at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email ([email protected]).