A group of plaintiffs recently got some bad news from a federal court in the Northern District of California when the court dismissed their claim for damages arising from Facebook’s use of their names and likenesses in advertising on its site. The court rejected the plaintiffs’ claims that their “consent” was void.
The plaintiffs were a group of minors who claimed that Facebook’s Sponsored Stories program used their names and likenesses without their consent. They sought a ruling that Facebook violated Illinois law (where the plaintiffs lived) which protects the “right of publicity.” The right of publicity is, ironically, a branch of privacy law. The theory is that people have the right to control the use of their name and likeness. Simply put, Calvin Klein cannot use my photo in an underwear ad unless I approve (and believe it or not, they’ve never asked).
Facebook argued the plaintiffs gave consent, based on the Facebook Statement of Rights and Responsibilities (SRR). Those terms alerted users (those who actually read them) that Facebook reserved the right to use names and likenesses. And by engaging on Facebook, the users agreed.
The plaintiffs argued under Illinois law, the “contract” formed by the SRR was void because they were minors. But the California court disagreed. It found that contracts with minors are not presumed void. Illinois law in fact provides “minors may make a contract in the same manner as an adult.”
Undaunted, the plaintiffs argued even if the contracts weren’t void from the inception, they had the right to “disaffirm” the contract. And that’s correct. Minors are allowed to enter contracts, but they can get out of them up to the “age of majority.” So why can’t that happen here? The answer is pretty simple. To “disaffirm” you have to actually make it clear that you’re exercising that right. Here, the plaintiffs continued to use Facebook and never took any steps to disaffirm.
The ruling had to sting, considering the plaintiffs had opted out of a previous class action with Facebook that wound up in a $20 million settlement. “Grass is greener”; “a bird in the hand” . . . pick your cliché. And read the terms and conditions!