Facebook Seeks Dismissal of Class Claims over Use of Youth’s “Likes” Without Consent

Seeking either clarification or dismissal of claims alleging that it has violated
state law by republishing the product or service preferences (“Likes”) of
children younger than age 18 as accompaniments to paid advertisements
without first obtaining parental consent, Facebook, Inc. argues that the claims
are insufficiently pleaded, fail to state a claim or are preempted by federal law.
Dawes ex rel. E.K.D. v. Facebook, Inc., No. 11-00461 (S.D. Ill., motion
filed August 1, 2011). Facebook explains that the plaintiffs are teenagers who
shared their Internet “Likes” with their friends and that Facebook may then
redisplay the preference to the same friends along with an advertisement for
the relevant company’s website.

According to Facebook, the plaintiffs have failed to indicate how they have
been injured because they failed to allege “that their personal information
had any ascertainable ‘value’ or any facts supporting the claimed ‘lessening’
of that value.” Facebook also contends that the plaintiffs are attempting
to “create a parental consent requirement for teenagers’ Internet use that
lawmakers, for sound policy and First Amendment reasons, rejected.” Because
Facebook forbids children younger than age 13 from using its site, the company states that “Plaintiffs seek to hold Facebook liable for not obtaining parental consent for the very group of minors that Congress determined should
not be subject to a parental consent requirement.”

The company also states, “By republishing a User’s name or likeness along
with the true statement—already shared with the User’s friends—that he or
she ‘Likes’ certain content being advertised on its website, Facebook provides
a forum for authentic endorsements by persons who, without pecuniary
motive, have expressed their approval of a particular product, service, or
cause.” Because state law exempts newsworthy speech from liability for
misappropriation, and because the plaintiffs’ “Likes” involve a matter of public
interest, Facebook claims that it “has a right under [state law] to republish
information that courts have explicitly recognized relates to matters of public
interest.”