After multiple states have alleged that it violated the rights of minors by publicizing their “likes” on the site and using their names and pictures related to goods and services, Facebook has responded.
When a Facebook user “likes” a company’s page, his or her name and profile picture are displayed on the page for others to see, as well as on a news feed for all of the user’s friends. And the company that was “liked” can also use the user’s image to advertise on the site. The suits – filed in California, Illinois and New York – argue that minors under the age of 18 lack the capacity to consent to the use of their names and profile pictures for marketing and advertising, and that the site should obtain the consent of parents or guardians of minor Facebook users before using or selling their names and likenesses for commercial use by third-party advertisers.
In a motion to dismiss, the social network argued that consumer opinions expressed as “likes” qualify as matters of public interest protected by the First Amendment. “Expressions of consumer opinion, such as the plaintiffs’ “like” statements challenged here, have repeatedly qualified as matters of public interest under the First Amendment.” What constitutes a “matter of public interest” is broadly construed, Facebook argued, and when a user says he or she “likes” certain content, “that user is communicating to his or her Facebook friends an affinity for content that the user’s friends have an interest in receiving. In such a circumstance, the ‘free flow’ of information from the speaker to the audience receiving the communication ‘is indispensable.’”
The motion also argues that the plaintiff’s claims are preempted by §230 of the Communications Decency Act, as well as the Children’s Online Privacy Protection Act. Immunity applies under the CDA because the plaintiffs “seek to hold Facebook liable for displaying information provided by another party – plaintiffs themselves – who chose to publish the statements alleged here,” the company argued. And because “Congress considered and rejected a parental consent requirement for minors aged 13 to 17, deferring in large part to teenagers’ First Amendment rights to access and communicate over the internet” when it enacted COPPA, the plaintiffs should not be allowed to create a parental consent requirement that Congress rejected. Facebook asked the court to dismiss the suit with prejudice.
To read the complaint in E.K.D. v. Facebook, click here.
To read Facebook’s motion to dismiss in E.K.D. v. Facebook, click here.
Why it matters: While the suits filed in Illinois and New York are still pending, a similar suit filed in California was dismissed. As the court in that suit observed, “Facebook exists because its users want to share information – often about themselves – and to obtain information about others.”
