As we've discussed, briefing is underway before the Ninth Circuit in an appeal regarding the settlement of a class action against Facebook (Fraley v. Facebook) for using its members' images for advertising without their consent — including the images of minors without their parents' consent.
In a related development, yesterday the same judge in the Northern District of California who approved the challenged settlement in Fraley dismissed a separate lawsuit alleging that Facebook's practices with respect to minors violate provisions of the California Family Code governing what contracts involving minors are valid. The Reuters story is available here. The plaintiffs in the case dismissed yesterday, C.M.D. v. Facebook, had opted out of the Facebook settlement in Fraley, which is why their claims were heard notwithstanding the settlement.
The C.M.D. decision yesterday is likely to be of limited effect on the pending appeal of the class-action settlement in Fraley. Before the Ninth Circuit, the various objectors to the Fraley settlement have advanced two theories pertaining to minors: (1) that the settlement is problematic under the California Family Code and (2) that the settlement is problematic under the California law governing misappropriations of likenesses, along with the similar laws in six other states, all of which prohibit the use of a minor's image for advertising without parental consent. Yesterday's decision addresses only the Family Code argument (the first argument). Although that decision in Facebook's favor may have some persuasive value at the Ninth Circuit, as an appellate court, the Ninth Circuit is free to disagree with what the district court ruled. And yesterday's decision did not address nor have occasion to address the misapprorpriation-law argument (the second argument I've identified), so the decision shouldn't influence how the court of appeals decides that issue.
