On Oct. 30, the 9th U.S. Circuit Court of Appeals affirmed that Facebook can use minor users’ pictures and likenesses in ads.
A proposed class of minors tried to sue Facebook for using their likeness in ads. But what ultimately ruined the minors’ case is that they continued using FB after filing the lawsuit. So, the courts ruled that, by using FB after filing the lawsuit, the minors showed that in reality they agree to the terms of service, despite not liking that one provision about using people’s likeness in ads.
Facebook’s terms of service contain a provision that gives FB the right to utilize users’ name and likeness in ads. So, when people continue using FB after clicking acceptance, the terms of use become a legally binding contract.
The class of minors, however, insisted that a contract formed minors can be voided because of their age under California Family Code § 6710.
The Ninth Circuit interpreted California law to mean that minors can generally enter into contracts on the same terms as adults. The Court pointed out that minors are only prohibited from entering into contracts over personal property rights. But the terms of service that the minors accepted when they signed up for FB don’t involve any personal property rights. So, since those minors clicked to agree to FBs’ terms of service, they formed a contract that is just as legally binding on them as the contract with adults.
Minor plaintiffs intended to disaffirm (void) their contract by filing a lawsuit. But in order to disaffirm a contract, one would have to reject the whole contract, not just the provisions they don’t like. Ninth Circuit cited a 1935 case, Babu v. Petersen, where it states that the general rule of California law is that “a party cannot apply to his own use that part of the transaction which may bring to him a benefit, and repudiate the other, which may not be to his interest to fulfill.” Minors continued using FB after filing their lawsuit. So, the Ninth Circuit determined that “[b]y continuing to use facebook.com after bringing their action, Plaintiffs manifested an intention not to disaffirm the contract.”
