Taking Facebook To Court: A Q&A

California lawyer John Torjesen on why Facebook shouldn't be using the names and images of children in advertisements without parental consent.

A California jury may be the ones to decide whether Facebook has wrongly used children to sell advertising on its site. Facebook has been using the names and likenesses of children that use its social network in advertising on the site without obtaining the consent of parents, something lawyer John Torjesen says runs afoul of California law. He says that when he realized the privacy concerns facing his son, it was “like being punched in the gut.” And so on Thursday he filed a class action complaint against Facebook. The Mark spoke with Torjesen about the suit.

The Mark: What caused you to file this class action complaint?

John Torjesen: I realized the privacy concerns were not just about me. They were for the children who don’t have the maturity, don’t have the growth, don’t have the experience to do anything about it. We need to watch out for them. I looked at it and said, “What’s Facebook doing about privacy for children, and what are the rules on that?”

Facebook is different from the other major websites. Facebook copies other people, or leads other people in data-mining, identifying values and markets, but they’re unique in putting endorsements on the ads they sell for that right hand column. And they don’t make any difference between endorsements by somebody over 18, and somebody under 18.

In California we have a strong legal tradition, in part based on our entertainment industry, that endorsements using a picture or a name of a child has to be approved by a parent or guardian if they’re under 18. Facebook is misappropriating the name and/or the likeness for advertising they sell to people.”

TM: What do you hope the outcome of the complaint will be?

JT: The three options for Facebook are: get parental consent, stop advertising children, or change the law. But I think most people believe that children should not be able to be included in advertising without consent. There’s limits on what business a child can do, and we’re not going to roll that back.

TM: Are you worried that this will be an unpopular move amongst minors who may fear losing access to Facebook?

JT: If Facebook cannot make a profit selling ads based on the values that are disclosed in the discussion, without including the endorsement, then they’re not competitive. Google has a whole lot of information about people. Or my best example is, you go to Amazon.com and you look for a book and at the bottom of the page, they say “people who liked that book also like this book,” but you never see a friend’s name up there. So if everyone else can survive in the economy without endorsements of children and Facebook can’t, I don’t have a lot of sympathy for that.

TM: Is California the only place a lawsuit like this could work? Could it happen in Canada?

JT: I have no idea. I’m a California attorney, I focus on California law. I don’t know what the rules are in Canada, I would just ask, does Canadian law protect children from being included in advertisements?

TM: Your complaint says that this type of marketing is only going to increase in the future. Is this something the government should be regulating?

JT: Nobody’s doing anything about it. We’re starting where we think the first step should be, which is protecting children. If someone else wants to step up to the plate and do something I would totally support it, but we’re doing what we can. The first step in our view is to protect the children.