*Like* - Child Privacy Class Action Lawsuit Against Facebook Dismissed by California State Court

Facebook users are well versed with the "like" button.

A friend posts a funny photo. *Like* 

A friend sets an interesting status. *Like* 

Two people are now friends. *Like* 

A user has enjoyed using a website or product. *Like*

Okay, that last category may not garner as many "Likes" as the others. But nonetheless, people still click on that button. And just like the other "likes", they can appear in other users’ news feeds and on the product or event page itself.

The reason you’re reading about this, of course, is that it has spurred litigation. Under California law, it is illegal for anyone to:

knowingly [use] 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 . . . .

Cal. Civ. Code § 3344.

For users 18 years old or over, there isn’t any consent issue: The Facebook Terms of Use ("TOU") state that the user consents to such a use. TOU at 10.1. But what about a minor? Can the Facebook TOU constitute consent? Or must a parent step in? If parental consent is required for the republication of a minor "liking" a product or event, and if the act of liking actually fits within the ambit of the section, then Facebook may have a problem complying with this California statute. In August 2010, a purported class of plaintiffs between the ages of 13-18 (the TOU state an individual must be 13 years old to use Facebook) filed a complaint in California state court making this very argument. Cohen v. Facebook, Inc., No. BC444482 (Cal. Sup. Ct.).

Facebook moved to dismiss the Complaint, arguing among other things that the Children’s Online Privacy Protection Act ("COPPA") preempted the California law. Enacted in 1998, COPPA is a federal law that regulates the online collection of personal information of children under 13 years of age. Importantly, it preempts any state laws that are inconsistent with COPPA. 15 U.S.C. § 6502(d). And COPPA’s legislative history makes it very clear that teenagers were to be exempted from any parental consent requirement. Facebook argued that Congress has already expressed what and how internet usage is to be regulated for minors, and that is through COPPA.

Judge Weintraub of the Cohen court was persuaded, and granted the motion to dismiss on September 22, 2011. Plaintiffs still can amend their complaint and attempt to plead claims not preempted by COPPA.

The Cohen decision makes sense, and there are other reasons the complaint should be viewed skeptically as well. The lawsuit points to a huge problem with state laws that attempt to regulate internet commerce. A company like Facebook is faced with a welter of restrictions that often serve nothing more than as traps for the unwary. In some instances, perhaps, a state interest in preventing harm is sufficiently great to warrant the resulting burden, but this does not seem to be such a case. (Even if it were, what would the statute require? Another boilerplate prohibition in the TOU barring California minors from participating?)

The Cohen result is by no means the end of the issue for Facebook. The plaintiffs have their chance to amend the complaint. There are also numerous other lawsuits alleging similar violations in other courts. See, e.g., Nastro v. Facebook, Inc., No. 11-CV-2128-FB-ALC (E.D.N.Y.); E.K.D. v. Facebook, Inc., No: 3:11-cv-00461-GPM-SCW (E.D. Ill.); Fraley v. Facebook, Inc., 11-CV-01726 LHK (PSG) (N.D.Cal.). Motions to dismiss are all pending in these cases, and of course Facebook is hoping these courts would look to the Cohen decision for guidance.

Regardless, this recent decision is a huge *Like* for Facebook.