A new lawsuit against Facebook for allegedly violating a California law banning the use of minors' images in ads without parental consent presents novel questions that defy easy prediction, legal experts say.
"There are arguments on both sides here," says University of Minnesota law professor Bill McGeveran, an expert in legal issues presented by social media. "It's a colorable case, but I don't think it's clear that the plaintiffs will prevail."
The potential class-action lawsuit, filed last week in Los Angeles Superior Court, says that Facebook misappropriates minors' names and faces via the "like" button. The lawsuit alleges that Facebook turns users who "like" particular brands or ads into endorsers of those companies by sharing that information with users' friends. A 1971 California law says that companies can't use names or photos of people in ads without their consent or, in the case of minors, the consent of their parents.
But it's difficult to know how that law, passed well before the emergence of the Web -- let alone social networking services -- applies to communications on sites like Facebook. "The borderline between conversation and advertising is really blurry in social networking," he says. "That borderline used to be very clear in traditional advertising."
The law itself specifies that companies can't knowingly use minors' names, voices, signatures, photographs or likeness "for purposes of advertising or selling, or soliciting purchases of products merchandise, goods or services" without parental consent.
Facebook's best argument, McGeveran says, is that its use of the like button isn't advertising as the lawmakers envisioned the term. At the same time, he says, the plaintiffs have grounds to contend that Facebook's like button should be considered an ad platform -- at least in situations where the company is working with marketers to help them promote goods or services. "They have some reasonable arguments to say that liking something is an endorsement," he says.
McGeveran says he personally thinks Facebook's alleged use of "like" as an ad tool probably violates the statute, but other observers reach the opposite conclusion.
Kimberley Isbell, staff attorney at the Citizen Media Law Center, agrees that the allegations present a close case, but says it doesn't necessarily make sense to treat "likes" on Facebook as ads, when users can communicate the same information without using a like button.
Isbell presents a scenario where a teen says he likes the new Radiohead album, versus clicking the "like" button -- saying that the plaintiffs' interpretation of the law would yield the different results in those situations: "If I am a 17-year-old and I post, 'I just heard the Radiohead album and it's fabulous,' that's okay. But if I go to the Radiohead page and click 'like,' and they have an advertising agreement with Facebook, that's not okay," she says. "I don't think that's what the legislature intended by the law."
A separate allegation against Facebook is that it violates the statute by returning minors' images in search results. But Facebook says that it doesn't allow minors to include their profiles in search engines.
A Facebook spokesperson also says the lawsuit is without merit and that it will contest the case. "The complaint misunderstands the law, its intent and the way Facebook works," the company says.
It's not clear at this time whether the plaintiffs also intend to sue companies that advertise on Facebook. The lawsuit refers to unknown defendants, to be named later. An attorney for the plaintiffs did not respond to Online Media Daily's questions about the unknown defendants. But some marketers who participated in Facebook's defunct Beacon program, which told users about their friends' e-commerce activity, were named in privacy lawsuits several years ago.