Privacy & Information Security Law Blog

On October 27, 2011, the United States District Court for the Northern District of California dismissed claims that Facebook misappropriated users’ names and likenesses in promoting its “Friend Finder” feature. Friend Finder identifies potential “friends” for a Facebook user by matching his or her email contacts with users already registered with Facebook, then presenting the user with friend suggestions. Facebook promoted the feature by displaying the names and profile photos of current friends as examples of users who had found friends with Friend Finder.

Facebook previously challenged the lawsuit by arguing that, when they agreed to Facebook’s terms, the plaintiffs had consented to this type of use of their names and likenesses. The court declined to decide that issue in its June 27, 2011 order to dismiss, instead rejecting the plaintiffs’ argument that the availability of minimum statutory damages in California could, in and of itself, satisfy the requirement to plead a cognizable harm. In response, the plaintiffs amended their complaint and added new allegations.

Both Facebook and the court acknowledged that non-celebrity plaintiffs could pursue economic damages claims under California’s Celebrity Rights Act. According to the Order, however, the issue before the court was “whether the use of the names and likenesses of non-celebrity private individuals without compensation or consent causes injury sufficient to support standing, where plaintiffs cannot allege that their names and likenesses have any general commercial value” and have not otherwise suffered harm.

The court concluded that the plaintiffs had not shown any cognizable injury. Because they argued that their names and likenesses had economic value specific to Facebook, the court distinguished the Cohen plaintiffs’ claims from those made in cases where non-celebrity plaintiffs demonstrated that their images had general commercial value. The court also noted that “this is not a situation where [Facebook] is alleged to have publicized the plaintiffs’ names or likenesses to any audience or in any context where they did not already appear.”