Publicity Rights Class Action Against Facebook Over Promotion of ‘Friend Finder’ Service Dismissed — Cohen v. Facebook

[Post by Venkat Balasubramani]

Cohen v. Facebook, Inc., C10-5282, 2011 U.S. Dist. LEXIS 124506 (N.D. Cal. Oct. 27, 2011)

This is a putative class action against Facebook for “promoting its ‘friend finder’ feature by disclosing to users that their Facebook ‘friends’ have used that function.” The first time around, the court dismissed the claims, but granted leave to amend. (“Court Dismisses Misappropriation Claims Against Facebook Over Its Friend Finder Service.”)

This time around, the court’s order focused on the issue of whether plaintiffs adequately alleged injury. Facebook argued in its earlier motion that the claims were undermined by Facebook’s terms of service, but the court says this issue is not amenable to resolution at the motion to dismiss stage, and Facebook does not bring this argument up again. The court previously ruled that plaintiffs are not automatically entitled to relief under California’s publicity rights statute and that plaintiffs can recover non-economic damages if they suffer emotional harm.

In the amended complaint, plaintiffs did not take the route of claiming emotional distress damages. They alleged instead that their names and likeness had economic value to Facebook. The court says that the allegations are insufficient, noting that plaintiffs did not allege that they were entertainers or models, or some other category of individuals who had “an obvious economic interest in [their] likenesses.” The court also says that Facebook is using the likeness in a context where it already appeared:

the names and likenesses were merely displayed on the pages of other users who were already plaintiffs’ Facebook “friends” and who would regularly see, or at least have access to, those names and likeness in the ordinary course of using their Facebook accounts.

The court says anyone who alleges some cognizable injury under the publicity rights statute can recover statutory damages, but plaintiffs failed to allege the minimum necessary. The court dismisses the case with prejudice.

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It’s possible that judges in the Northern District of California are getting sick of privacy class actions, because lately they have been pretty harsh on them. I don’t think it’s necessarily a bad thing, but it seems like courts are scrutinizing these complaints very closely. The iPhone class action, where the court shreds the complaint, was the most recent example before this one: “iPhone Privacy Class Action Dismissed for Lack of Standing.”

Plaintiffs face the challenge that they have to tailor their complaints to suit a class, but they do not do a good job of coming out and arguing what exactly the harm is or where exactly the misappropriation occurred. Was this simply a case of Facebook disclosing to your friends that you had used the ‘friend finder’ service and showing your profile picture when they did this? Or was there something more? (This is a publicity rights and not a privacy lawsuit, but am I missing something, and is Facebook’s ‘friend finder’ some sort of super secret risque alternative dating service?) If there was more to this, it did not come through in the court’s order, and maybe plaintiffs just didn’t do a great job of making sufficient allegations of nefarious conduct on the part of Facebook.

Plaintiffs tend to rely on this argument that the information or likeness has value, because it has value to Facebook (it must have value, because Facebook is exploiting it). But courts are not buying this argument. Facebook may or may not be exploiting your personal information or likeness, but you have to be able to articulate some value to it independent of the fact that Facebook is exploiting it. As we’ve seen in several cases, this is often a challenge.

The court dismisses on the basis that plaintiffs have not suffered cognizable injury under the statute, but in a footnote alludes that Article III standing would be a problem anyway. It’s not clear as to whether alleging a statutory violation is sufficient to confer standing, or whether plaintiffs have to independently satisfy Article III standing requirements. A case pending before the United States Supreme Court raises this issue with respect to a federal statute; Facebook, Yahoo! and others have weighed in with a friend of the court brief. (See “‘Sleeper’ Case Asks Whether Plaintiffs Can Sue Without An Injury.”) If there’s an independent Article III standing requirement, can plaintiffs proceed in state court?

These lawsuits don’t leave us with much clarity. Is Facebook engaging in some edgy practices to exploit users’ likenesses and information? It’s possible, but the best you can say after this case is that plaintiffs’ allegations were muddled and the judge threw them out.

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Court Dismisses Misappropriation Claims Against Facebook Over Its Friend Finder Service — Cohen v. Facebook

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