Ninth Circuit upholds Facebook settlement

It's been a while since we discussed the Facebook minors'-privacy case, a class action over Facebook's use of members' images in ads without their consent. Public Citizen represented parents who objected to the proposed settlement because it permitted Facebook to continue using their children's images in ads without parental consent — a practice that violates the law in seven states (CA, FL, NY, OK, TN, VA, WI). After the district court approved the settlement, the parents appealed.

Today the Ninth Circuit affirmed in a cursory decision. The court didn't engage with our arguments that the settlement was unlawful; it said only that the district court did not abuse its discretion by approving the settlement because "[i]t is . . . not clear whether the settlement at issue . . . violates state law." This conclusory statement is surprising in light of the plain text of the state laws at issue. For instance, in California, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable . . . .” Cal. Civ. Code § 3344(a) (emphasis added). The laws of Florida, New York, Oklahoma, Tennessee, Virginia and Wisconsin are to similar effect, and there are additional criminal prohibitions on this practice in New York, Oklahoma, and Tennessee. What more did the court need? Its decision, disappointingly, did not say.

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