Can a California Minor Consent to a TOS – Yes, they can

Published On April 1, 2014 | By Daniel Lieberman | General, Litigation

In a decision that should ease the concerns of Internet providers, Facebook and its Sponsored Stories Program survived an attack from a putative class of minor plaintiffs in the Northern District of California. The minor plaintiffs first brought suit in Illinois Federal court in 2011, arguing that the social media company violated the Illinois Right of Publicity Act by using the minors’ names and likeness in advertising without their consent, because their consent to the Facebook terms of service (“TOS”) was alleged to be invalid due to their minor status.

At issue was Facebook’s Sponsored Stories Program, which placed a user’s name and profile picture next to an advertiser’s logo and then stated that the user had “liked” the company. Central to the plaintiffs’ claim was that minors lack the ability to grant consent to Facebook’s Statement of Rights and Responsibilities, which covers the company’s ability to make use of names and pictures in various ways.

After the case was transferred to California and after the minor plaintiffs elected not to participate in a $20 million Facebook Sponsored Stories settlement in 2012, last week Judge Richard Seeborg granted Facebook’s motion to dismiss. In treating the case as a “garden-variety” matter of contract law, Judge Seeborg found that the minor plaintiffs were unable to show why terms giving Facebook the ability to use names and profile pictures in advertising were invalid.

The decision reinforces California’s presumption that minors can enter into binding contracts. Cal. Fam. Code § 6700. The court noted that minors do have the right to disaffirm contracts like a TOS agreement. But such disavowal does not vitiate the consent that was given before the agreement was disaffirmed. Thus, while a minor’s consent can be withdrawn, providers – at least in California — will not be held liable for relying on such consent before it is withdrawn.

About The Author

Daniel Lieberman works alongside Zwillgen attorneys on intellectual property litigation, consumer product counseling, data privacy matters, and law enforcement compliance. Before joining Zwillgen, Daniel worked as a law clerk to the U.S. Senate Judiciary Committee in Senator Dianne Feinstein’s office, where he assisted counsel to the California Senator on intellectual property, cybersecurity, and judicial nominations.

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