Some people use Facebook’s Friend Finder service to renew contact with old friends or to maintain contact with present friends. It’s an annoying and pathetic form of social interaction; but it’s legal. However, a newly discovered aspect of the service may not be so benign, or so say Robyn Cohen et al. v. Facebook, Inc.
“Facebook…promotes the availability of the Friend Finder service by periodically placing notifications on the ‘home’ page of users’ accounts, stating that certain of their Facebook ‘friends’ have utilized the service to locate persons they know, and encouraging the users to '[g]ive it a try!’ The notices include the names and profile pictures of the ‘friends’ who have purportedly used the service.” The plaintiffs contend that Facebook’s use of their names and profile pictures is unauthorized and, in at least some instances, false; postings are placed on the ‘home’ pages of individuals who have never actually used the service. This, in the view of the plaintiffs, constitutes a legally prohibited “misappropriations of both their names and likenesses for commercial purposes.”
Facebook moved to dismiss the suit, arguing that, under its user agreements, it had the right to do what it was doing and, further, that “plaintiffs have not alleged any cognizable injury from the alleged practices, because their names and profile pictures were merely displayed to their Facebook ‘friends,’ who already had access to them, and because they have no commercial interests in their names and likenesses.”
While the Court was not favorably impressed with Facebook’s first argument, it was more accepting of the second, holding that the plaintiffs “have alleged no facts that would suffice to show a plausible entitlement to relief. Plaintiffs have not shown how the mere disclosure to their Facebook friends that they have employed the Friend Finder service (even assuming some of them did not) causes them any cognizable harm, regardless of the extent to which that disclosure could also be seen as an implied endorsement by them of the service.” Case dismissed.
Lest it seem that the case was really over, however, the Court went on to point out that statutory minimum damages of $750 per person were available “to compensate non-celebrity plaintiffs who suffer…mental anguish yet no discernable commercial loss” (emphasis in the original). Just in case they needed any further guidance, the Court went on, “[a]ccordingly, plaintiffs must at a minimum, plead that they suffered mental anguish as a result of the alleged misappropriation, and a plausible supporting basis for any such assertion.” The Court then granted the plaintiffs 20 days to file an amended complaint.
A Facebook representative announced that the company was “pleased with the ruling.” Frankly, we doubt that.
Meanwhile, back in state court, two class-action lawsuits attacking Facebook’s advertising model have been consolidated: David Cohen et al. v. Facebook Inc. and Juliet Meth et al. v. Facebook.
In case the reader was unaware, Facebook promotes products by delivering customized advertisements informing users that a friend has “liked” a certain product. The two lawsuits contend that the exploitation of a user’s name and likeness is illegal if the user is a minor and no parental consent has been obtained. Facebook allegedly makes no effort to obtain such consents. The plaintiffs seek to represent all Facebook users who are California residents and were minors within the last four years. We suspect that this is more than a few.
As these cases went their way through their respective courts, two questions come to mind: (1) what was Facebook thinking when it adopted these advertising programs; and (2) are Robyn Cohen, of federal court fame, and David Cohen, of state court fame, related?
"Lest it seem that the case was really over, however, the Court went on to point out that statutory minimum damages of $750 per person were available “to compensate non-celebrity plaintiffs who suffer…mental anguish yet no discernable commercial loss”"
Right ... mental anguish, coming right up.