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Citizen Challenges Facebook Settlement that Allows Kid's Photos in Ads

Attorney Scott Michelman said, "This settlement authorizes Facebook to use children's images for advertising without their parents' consent."

In a brief filed with the U.S. Court of Appeals for the Ninth Circuit, several parents called on the court to vacate a settlement that permits Facebook to use kids’ pictures in ads without the consent of their parents – which is illegal in seven states.

“This settlement authorizes Facebook to continue doing what California and six other states specifically prohibit by law: use children’s images for advertising without their parents’ consent,” said Scott Michelman, attorney with Public Citizen, which is representing the parents in challenging the settlement. The other states are Florida, New York, Oklahoma, Tennessee, Virginia and Wisconsin.

Margaret Becker of Brooklyn, N.Y., is one of the parents Public Citizen represents. She explained, “I’m fighting this settlement because Facebook shouldn’t be permitted to use my teenage daughter’s image for profit without my consent. But this settlement lets Facebook make my daughter a shill and leaves me powerless to stop it.”

Added Hudson Kingston, legal director of the Center for Digital Democracy, which is filing an amicus brief supporting the challenge to the settlement, “If this settlement stands, teens face a serious loss of their privacy and a damaged reputation continuing into adulthood. Research proves teens are not ready for this kind of exposure, and parents’ consent for commercial appropriation is a necessary protection.”

Also today, one of the groups designated in the settlement agreement to receive money, the Campaign for a Commercial-Free Childhood (CCFC), announced that it was rejecting the money because it opposes the agreement. The group was to receive approximately $290,000 in settlement money. In a statement, the CCFC explained that the settlement’s supposed protections for minors were “hollow” and “meaningless.”

“While we always understood the Fraley settlement agreement as a compromise, we came to understand that it’s worse than no settlement,” said CCFC Director Susan Linn, “Its purported  protections are largely illusory, and it will undermine future efforts to protect minors on Facebook. We could do a lot of good with $290,000, but we cannot benefit from a settlement that we now realize conflicts with our mission to protect children from harmful marketing.”

Endorsements without consent

The case began with a lawsuit filed in 2011 by some Facebook users over the use of their images in ads without their consent and the use of their children’s images without parental consent. If a user “likes” a company that advertises on Facebook, or if she “checks in” (identifies her location) at a restaurant, or uses an application associated with that company, her image may appear next to an ad for the business on Facebook, with text suggesting that she endorses that business. It is unlikely the children or the parents will know it’s going to happen until after it has occurred.

Under a settlement that a federal district court approved in August, Facebook will include new language in its terms of service stating that users under age 18 “represent” that their parents consented to the use of the children’s names and images in advertising. The settlement does not require Facebook to obtain consent from the parents.

“The capture and republication of teen postings by Facebook is a pernicious assault on their rights to decide where their messages should go,” said Professor Robert Fellmeth, director of the Children’s Advocacy Institute at the University of San Diego School of Law, which is representing another challenger to the settlement.

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