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back to article Judge throws out lawsuit lobbed at Facebook for using kids' pics in targeted ads

A judge has thrown out a potential class action lawsuit against Facebook over its use of photos of minors in targeted ads, ruling that the users gave their consent when they signed up for the social network. The suit accused the firm of "commercial misappropriation" of the names and pics of minors who were using the social …

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Trollface

It was originally going to be named "commercial misappropriation"

But the focus groups didn't think it was hip enough for the kids!

So, they settled on Facebook.

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Read the T&Cs of the web site

Most people do not bother, partly because they are often long/hard-to-understand and partly because unlike a normal contract they are non negotiable - and most often because they are lazy/will-not-take-the-time.

Maybe people will slowly start to understand that they are agreeing to things, even if they can't be bothered to find out what.

What is needed are a set of standard agreements that have been approved by trading standards or similar ... they could have attached schedules to deal with thing like delivery times.

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Re: Read the T&Cs of the web site

The problem with a set of standard is invariably the impossible to calculate number of future things a site may have to ask your agreement for. The law is so complex to do practically anything at all with any data lots of different agreements need to be sort. There isn't really any way around this other than a lengthy document asking for you to agree to all of those specific things that particular site or application requires by law to seek. The only thing I would recommend is a simplification of the language used. Ultimately if a user is bothered enough to take a company to court, they should be bothered enough to take 10 minutes to read the terms before joining a site, provided those terms can be written in plain English.

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Re: Read the T&Cs of the web site

"... standard agreements that have been approved by trading standards ..."

And how would you classify the standard "social media" Ts&Cs -- "All rights are transferred to us, and we can change these conditions at any time so as to benefit us, oh and you have agreed just by reading this." The only appropriate classification would be "Here be Dragons -- run for your lives!"

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Re: Read the T&Cs of the web site

You and the judge are both twits. The very fact that they are minors means they aren't legally considered competent to sign such a contract. The FB defense should have failed before it started.

Adults you have a better case on. But I think there's still sufficient "it can't be negotiate so it isn't a real contract" basis to take it to court in front of a competent judge.

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Facepalm

Re: Read the T&Cs of the web site

No. The problem with a TOS is the fact that no minor is able to consent to a contract.

No legal consent can be given. So the whole "but you signed a contract" argument goes up in a puff of smoke. The judge should know better.

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Flame

Re: Read the T&Cs of the web site

"The judge should know better."

The judge seems to be an asshole ...

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Re: Read the T&Cs of the web site

I expect he's a well paid asshole...

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Re: Read the T&Cs of the web site

My first assumption (I may be wrong ... ) is that he did not get to be judge by being ignorant, so my second assumption is that he must be very well paid.

Yes, pun intended.

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Anonymous Coward

Re: Read the T&Cs of the web site

"The problem with a set of standard is invariably the impossible to calculate number of future things a site may have to ask your agreement for."

Boo effing hoo. If some damn business want to violate my data in new and innovative ways, they can ask for permission AGAIN.

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Re: Read the T&Cs of the web site

> Most people do not bother,

I don't bother because it's not a contract at all, just a wishlist, more often than not with illegal wishes/terms -- like for instance that they own the copyright to all photos you upload. It is troubling that the judge referred to the ToS instead of pointing out that a Facebook profile page is public, so the user can not reasonably expect that what he posts on the profile page is private.

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Re: Read the T&Cs of the web site

I disagree. What is needed is T&Cs that are written in language that you don't have to be a lawyer to puzzle out. I'm pretty good at reading legalese but even I get a headache trying to go through FB's T&Cs. I doubt there are many minors who would be able to work out what they're agreeing to at all.

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Big Brother

Public Ownership

I find it .. funny ... that many people seem to hold the belief that all of the web, in the widest sense, should somehow become public property.

I can - almost - understand it with the Internet itself (the tech and systems), but where do people get the idea that a corporation - even one as vacuous as Facebook - should suddenly start playing nice simply because it has become widely popular?

The same was/is true of Google. As soon as it became the world's search engine, everyone started complaining that their lax attitude to privacy was a problem. While it may well be a problem, it seems ... funny ... that people seem to believe it should/will ever be any different.

The only thing of any value on the web is its users - Everything else is just the stuff the users pay for.

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Trollface

Re: Public Ownership

No no no no. You have it all wrong. They own everything you do, but you never ever own anything they do. Upload that photo? They can sell it a million times. Download their song, well if you share it once it's off to prison with a million dollar fine.

Talk about one sided. But then again, it's all in the contracts... :(

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Paris Hilton

Re: Public Ownership

It's part of the cost of using the site/service for FREE.

People need to start teaching Self-Responsibility and Self-Accountability to their kids.

California is the biggest abuser of raising entitlement-minded individuals.

Running FaceBook costs money. If the public still hasn't gotten the idea that NOTHING is free.

Then they are simply to stupid to ever learn.

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Re: Public Ownership

@ TechnicalBen

Yes (but why am I wrong?)

OK, I could have typed, "Only users (and so their data) are of any value ..."

As GotThumbs put, people need to realise that it is only free at the point of use. Why would Zuck (or anyone else) spend lord knows how much, running that many servers, if he couldn't make cash out of it?

And the only way he can make cash out of it, is by charging companies to advertise (or sell games ... or whatever) to users.

He will use whatever data he can, from the mine, to exploit the resource; without charging the resource. The ... funny ... point is, everyone should know that (but apparently, doesn't).

In the web-age, it seems there is nothing as easily parted as a fool and his data ;-)

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FAIL

@ cracked -- Re: Public Ownership

He will use whatever data he can, from the mine, to exploit the resource; [ ...]

While you may be empirically correct, that's not what's supposed to occur. A more correct statement would be:

He will use whatever data he is legally allowed to use, from the mine, to exploit the resource; [ ...]

And according to all current contract law I'm aware of, minors cannot enter into legally binding contracts, period. And since agreeing to the T&Cs constitutes an attempt at a legally binding contract, the terms and conditions cannot be enforced against a minor. Now one could argue whether a minor should be allowed to use Faceplant at all...but that is a separate discussion for another time.

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Anonymous Coward

Re: Public Ownership

I'm pretty sure when I downloaded that song I didn't agree to any T&C's.

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Re: @ Someone Else -- Public Ownership

I wouldn't disagree that anyone under the age of ... whatever age can't agree to terms and conditions in the country where said "minor" lives ... shouldn't be using the Internet unless their parents/guardian accept responsibility for their use.

... There is no running away from the argument you invite, in your defence, on this site ;-)

There will be terms and conditions from the Access Provider to get onto the web and if "kids" can't legally agree to those terms and conditions then whether or not they can sign up to Facebook is, I think, a moot point.

As with the hullabaloo surrounding porn sites (I was shocked to see a BBC trailed study reporting 6% of 17 year olds used such sites!); if people want a strictly controlled web, then bullet-proof age-verification is the only way forward.

That said, motor car manufacturers do not require that you insert a credit card before driving off. They are allowed to assume the parents are looking after the keys ;-)

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Anonymous Coward

re: minors cant sign contracts

I thought the reason minors can't sign contracts is because they are not allowed to by law, in order to protect them from having their rights abused (or being tricked into giving them away) when they may not understand the consequences of their actions. It's not because they can't hold a pen or click in a box - it's because even if they do, it doesn't count under law.

Thus the statement "Seeborg said that the default rule that minors could sign contracts in the same way as an adult" makes no sense to me.

Can anyone clarify?

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Re: re: minors cant sign contracts

Coming Soon:

Mortgages for kids! See your local sociopath, sorry...bank manager, today!

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TJ1

Re: re: minors cant sign contracts

In the U.K. at least, I think the legal principle is that a contract cannot (could not?) be enforced against a minor, and contracts with under-sevens and those 'unfit' through mental incapacity are deemed void.

For older minors, they can enter into a contract but they can also terminate it at any time, and the redress (if any) available is limited to damages, which is why guarantors are often required in such circumstances.

Obviously California law applies in the case reported, and it sounds as if the applicable law is similar in respect of minors being able to enter into legal contracts, which means the terms that allow Facebook to use the minor's shared data is a valid contractual term.

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T&Cs are not contracts

And shrinkwrap agreements that you cannot read before buying the product aren't either.

If you review your commercial law, a contract is an agreement between two parties for an exchange of goods and services. Once the agreement is signed, it becomes legally binding and cannot be changed without the consent of both parties. Any clause that is deemed illegal is automatically void and cannot be invoked by either party. Any clause that allows one party to change contract clauses without consent from the other party is therefor illegal.

T&Cs are imposed on the user and can be changed without user consent (usually via a clause that explicitly states the fact) ergo they are not a contract.

I am sick of hearing companies spout this nonsense without getting shot down by a first-year law graduate.

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FAIL

Re: T&Cs are not contracts

But they have to be *lawful*. Just because "The T&Cs" say something, doesn't necessarily make it so. How about a T&C which says that in the event of <x> MegaCorp has the right to burn your house down ?

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Paris Hilton

Re: T&Cs are not contracts

@Pascal Monett

Yes, but contract law/commercial law cannot endorse illegal action as criminal law takes precedence?

Therefore to be legally binding contract law/commercial law must also uphold criminal law?

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Linux

Re: re: minors cant sign contracts

> It's California. The law of England and Wales doesn't apply.

Except at one point the were the same law. Chances are that the relevant principles have not changed since that time.

Yes Virginia, there are legal precedents taught in American law schools that predate Columbus or any American jurisdiction. That's a nice feature of our joint legal heritage (the precedent).

Now France vs. California is an entirely different kettle of fish.

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TJ1

CA Minors *can* sign contracts

See "Contracting With Minors", State Bar of California, Business Law News Issue 4, 2008 by Robert N. Pafundi [1]

Since 1971, the age of majority in California has been 18 for both men and women. The general rule is that a minor may make a contract in the same way as an adult, subject to the power of disaffirmance. See Family Code § 6700.

However, some contracts with minors, such as those “relating to real property or any interest therein” or “any personal property not in the immediate possession or control of the minor” are void from the time they are entered into ( Family Code §§6701(b) and 6701(c)).

In addition, a minor is also prohibited from delegating the power to contract on his or her behalf. (Family Code § 6701(a)).

...

But most contracts, except those that are statutorily prohibited, may be “disaffirmed by the minor before majority or a reasonable time afterwards or, in the case of the minor’s death within that period by the minor’s heirs or personal representative.” Family Code § 6710.

The effect of this rule is that the minor can unilaterally void or disaffirm the contract, or decide to enforce it against the other party (unless the other party is also a minor).

The minor can disaffirm the contract orally or through an action that manifests an unequivocal intent to repudiate the contract. See, e.g., Spencer v. Collins (1909) 156 Cal. 298, 303; Celli v. Sports Car Club of America (1972) 29C al.App.3d 511, 517. See also Pereira v. Toscano (1927) 84 Cal.App. 526 (holding that an oral statement was sufficient to disaffirm a contract).

The minor, however, cannot disaffirm parts of a contract and seek to enforce its other provisions. It is all or nothing. See Holland v. Universal Underwriters Ins. Co . (1969) 270 Cal.App.2d 417, 421.

...

The generally protective approach to minors who contract is warranted. Even in our media - saturated culture where children seemingly mature faster than they used to, children are substantially more vulnerable than adults with whom they contract. But as children have wielded more economic power, and as some contracts with minor actors and athletes can involve tens of thousands if not millions of dollars, California law has developed tools that increasingly give those contracting with minors the ability to enforce those contracts.

...

The most straightforward way to enforce a contract with a minor and overcome the minor’s common law right to void the contract unilaterally is to obtain pre-approval of the contract from a superior court. Family Law §6751 establishes an underutilized procedure for obtaining such approval.

Under that section, “[a] contract, otherwise valid, . . . entered into during minority, cannot be disaffirmed on that ground either during the minority of the person entering into the contract, or at anytime thereafter, if the contract has been approved by the superior court . . . .” A Superior Court has the authority to pre-approve the contract if it is located “in any county in which the minor resides or is employed or in which any party to the contract has its principal office in this state for the transaction of business.” Thus, a business headquartered in any California county may seek court approval from its local superior court regardless of where the minor lives or works.

[1] http://pafundilawfirm.com/Articles "Contracting With Minors: How California Lawmakers and Courts Deal with Adults Who Enter Contracts with Minors"

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Re: CA Minors *can* sign contracts

And to expand on TJ1's point, since all Facebook users can terminate the contract by deleting their account, it does appear that Facebook is playing by the rules here. Regardless of how creepy I think Facebook is, I consider this a good result. I would hate to see more websites ban everyone under 18 from using them at all the way most already do for people under 13 as the result of another law.

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Re: T&Cs are not contracts

> I am sick of hearing companies spout this nonsense

Companies have spent vast sums of money the last 10-15 years, lobbying to get ToS and shrinkwraps recognized as contracts, and - I'm sad to say - with considerable success.

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Re: CA Minors *can* sign contracts

> all Facebook users can terminate the contract by deleting their account

You can not delete a Facebook account, "deleting" a Facebook account merely hides your profile page.

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FAIL

Re: CA Minors *can* sign contracts

" You can not delete a Facebook account, "deleting" a Facebook account merely hides your profile page."

Wrong. Facebook has both a 'deactivation' option, and a deletion option. Tin-foil-hat conspiracy theories relating to the latter option are irrelevant.

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Minors can give consent now?

District Judge Richard Seeborg might want to rethink that decision!

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Anonymous Coward

Re: Minors can give consent now?

Or perhaps that's his plan "They consented..."?

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Paris Hilton

Re: Minors can give consent now?

Is he a pedo?

Or does he have pedo tendencies?

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Presumably some people at Facebook are at least smart enough

To set out the Ts&Cs in such a way, varied from one territory to the next, that they simply say you have to be of whatever the local consensual age is to be able to sign the Ts&Cs, since it's of no value to them to have users they can't exploit for revenue generating purposes.

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Re: Presumably some people at Facebook are at least smart enough

So what happens when a minor signs up, in violation of Facebook's T&C, and Facebook then exploits their image?

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Re: Presumably some people at Facebook are at least smart enough

T&Cs commonly have a paragraph stating which law governs, as in 'this contract shall be governed by laws of the State of California.' While IANAL, I have been taught that a contract is 'a meeting of the minds,' and any contract for which you can't negotiate is an adhesion contract and thus unenforceable, but that may vary by state...

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Re: adhesion contract and thus unenforceable

Nope, that's been decided at the Federal level and therefore is binding on the States.

The judge is just flat wrong on this one. FB is essentially in the same spot all the Pr0n companies who made films/vids of Traci Lords were in when she sued them for exploiting her when she was a minor.

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Re: So what happens when a minor signs up?

You thought that was worth a '-1'? Really?

Clearly what happens is when they are made aware, they delete the account and remove the images. If you can prove they continue to use the material afterwards then maybe you have a case. But they can't be sued for it when they're the victims of deception, regardless of the age of the perpetrator.

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Didn't LinkedIn get in similar trouble ?

But if I remember correctly, LlinkedIn got its fingers rapped and did not get to use Ts & Cs clauses to get itself out of hot water.

Funny that, there aren't supposed to be any kids on LinkedIn.

But I'm probably not remembering correctly the hows n whys.

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Re: Didn't LinkedIn get in similar trouble ?

I guess Linkedln cannot wave a multi billion dollar incentive?

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An odd case to bring against Facebook

I have to admit to feeing pretty bemused about this whole case. Facebook has <u>always</u> stated that they are allowed to use any information, photos, or whatever you put on Facebook in whichever way that Facebook wants. Basically they can sell everything about you to whoever they want, whenever they want; if they want to use your picture in an ad then they can do so. On the face of it then the judges ruling (parking to one side issues relating to minors) is completely correct.

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Re: An odd case to bring against Facebook

While true, this is not the case for say "top secret documents" they may acquire. The government would not allow them. Or in this case "data from minors" one would presume. They can say "we will do anything we wish", but in actuality, they have to follow law like everyone else. Well, so we thought.

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Re: An odd case to bring against Facebook

"Basically they can sell everything about you to whoever they want, whenever they want"

Quite, which is exactly why I erased my WhatsApp account the second I found out that Facebook were buying them (and, more to the point, their mobile phone number database).

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Re: An odd case to bring against Facebook

Only if you are competent to sign the T&Cs which by legal definition, minors are not.

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FAIL

Once more with feeling...

I have said it over, and over again.

If one is stupid enough to use ANY of these asinine social networking sites...then simply deal with the consequences...and stop your incessant whining.

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Mushroom

@ItsNotMe

Downvoted for not getting it.

Yes AN ADULT can be expected to be responsible for their own actions, and should suffer the consequences. But we're not talking about ADULTS here.

Despite what you may think about 13 year olds (and younger) finding FB "cool" and wanting to go on it because their friends do, they are not capable of understanding the T&Cs.

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FAIL

Re: @ItsNotMe

So as an alleged adult, and knowing what creeps run and use Farcebook, you would allow YOUR children to use it without YOUR supervision or knowledge?

Doesn't sound too "responsible" to me...Ace.

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Childcatcher

T&C Proxy

I have never accepted T&C online. A cat walking across the keyboard does that for me. Sue Tiddles.

How can this vile organisation keep getting away with it?

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