In what may represent a new wave in an interesting challenge to the viral nature of social media marketing, a recently filed putative class action asserts a right of publicity claim against Facebook in connection with the service’s “Like” and “Friend Finder” features.

J.N. v. Facebook, Inc.,  No. 11-cv-2128 (E.D.N.Y.) (complaint) is an action brought by the parent of a minor user of the Facebook social networking site, alleging that the minor’s name and likeness was appropriated for commercial advantage without the consent of his parents, as required by New York Civil Rights Law § 50. Section 50 provides that a living person’s name, portrait or picture may not be used for advertising purposes without the person’s written consent, “or if a minor of his parent or guardian.”

Although many Web sites and online service require users to affirm that they are over the age of 12 (the age below which the requirements of the Children’s Online Privacy Protection Act kick in), relatively few restrict users between the ages of 13 and 18 from their sites and services. The question arises, do users in this age group have the capacity to contract, for example, to assent to online terms of use that may contain an express or implied waiver of publicity rights? The issue of a minor’s capacity to assent to such terms has been litigated rarely and not definitively addressed in the online context.

The complaint targets the functionality of Facebook’s “like” button, which offers users the ability to indicate their endorsement or approval of a Facebook page or event. The complaint alleges that when a minor user “likes” a Facebook brand page or RSVPs to an event, the service dislays the minor’s name and likeness both on the “liked” page and in an advertisement displayed on the home page of the minor’s friends. This, the complaint asserts, violates Section 50, and entitles the plaintiff (or plaintiffs, if a class is certified) to relief under New York Civil Rights Law § 51, including gross revenue and profit attributable to violations of § 50.

The complaint also targets the Facebook “Friend Finder” functionality on similar grounds, contending that the names and likenesses of minor users of Facebook have been displayed to other users in order to encourage them to user the functionality to solicit their friends and contacts to join the service, all to the benefit of Facebook and its advertising revenue.

The complaint asserts that although the Facebook terms of use purport to allow the service to utilize a user’s name or likeness for advertising purposes when the “like” function is utilized, assent to those terms is not sufficient consent to such use. Further, the complaint asserts that even if assent to the terms of use on the part of an adult does amount to consent to commercial use of the adult’s name and image, it does not constitute consent on the part of the parents of minor users as required by Civil Rights Law § 50.

This is not the first lawsuit to raise the issue of consent of minor users to Facebook’s use of their names and likenesses for advertising purposes, although previously filed lawsuits have asserted violations of California law. David Cohen v. Facebook, Inc., No. BC 444482 (Cal. Super Ct., Los Angeles Cty), alleges claims under California Civil Code § 3344 (requiring parental consent for the use of a minor’s persona in advertising), the California Constitution, Art. 1, section 1 (right of privacy), and California Business and Professions Code §§ 17203 and 17204 (unfair competition law). See also Meth v. Facebook, Inc., No. BC45479 (Cal. Super. Ct. Los Angeles Cty) (raising similar claims as to a minor user of Facebook).  [Motion papers seeking to consolidate the David Cohen and Meth cases, available here, contain the complaints in both cases.]

Note also, that a separate federal lawsuit filed in California alleges similar claims as to adult users, see Robyn Cohen v. Facebook, Inc., No. 10-cv-05282 (N.D. Cal.). Facebook’s motion to dismiss that action on the ground, among others, that the users consented to the use of their names and likenesses, was filed in January and a ruling is currently pending.