June 2011 – Page 2

Facebook is facing another class-action, this time in Federal Court in Illinois, charging it used minors in its advertising. Although I haven’t done a search, there are at least two or three others – federal actions in California and New York and at least one state lawsuit filed in Southern California. In each of these cases, the allegations are essentially the same. Facebook takes user names, pictures and preferences, using the "Like" buttons, and then mashes or moshes (that word is the pits) them with paid sponsorship and advertising to target specific ads – sometimes referred to as "enhanced" or "premium" advertisements. The user’s name or likeness can be "pushed" to their Facebook friends – presumably people who the user has specifically permitted to be able to see such information; and also presumably by becoming a "friend," they, in turn, have manifested a desire or interest to know what the individual is doing, what she or he likes, opinions, where they are and what they are doing.

Aside from issues of free speech, voluntary opt-in and parent consent, especially where the individual is a minor and their name, image or likeness is used in an "ad" (and it’s not clear or settled that these are all "advertisements"), a question arises as to whether section 230 of the 1996 Communications Decency Act insulates Facebook from liability as a neutral communications platform that doesn’t control what each individual does or offers – so long as they act in accordance with Facebook’s terms and conditions. Some commentators point out, however, that in 2007, a Federal Appeals Court in California (9th Circuit Court of Appeals) held that Roommates.com was not immune when their users posted ads that were illegal under the Fair Housing Act (See, Fair Housing Council v. Roommates.com LLC [PDF]. That said, in the Roommates case, the ads were, to some extent, structured, and categories of content and information for the ads encouraged, if not solicited, populating the database of advertising for roommates using the website. Facebook may well argue that simply providing a "Like" button and making it available for use, is no different from a brand owner making a gadget or widget icon available should a user want to place it on their site. The "platform" – in this case Facebook – has no part in the user’s decision, nor is it offering to customize the user’s "Like" decision in any way that could be construed as editing or adding new content as a publisher.

One thing is very clear. Nothing is clear. Stay tuned!

This post was written by Judith L. Harris, with assistance from Rimon Summer Interns James Duchesne and Linda Shim.

A new trend is quickly taking hold. In recent months, a sizeable number of class action lawsuits have been filed involving unsolicited text messages. A messaging system called “Short Message Service,” better known as “SMS“, allows individuals to receive text messages on mobile phones. Consumers unhappy with bulk, unsolicited SMS marketing messages are filing suit under the Telephone Consumer Protection Act 47 U.S.C. § 227 (“TCPA”) in alarming numbers. You can read a summary of the TCPA Rules [PDF], but to recap for these purposes, the TCPA prohibits any call from an automatic telephone dialing system to any mobile telephone service or any service for which the called party is charged. Since most mobile phone service plans charge on a message received/sent basis, the fact that SMS is subject to the TCPA’s prohibitions (just like land line phone calls), has caught many by surprise – including many of the most sophisticated operators in the mobile marketing space.

Lusskin v. Google [PDF] is one of the latest of these cases to be filed (Federal Court in California) and takes aim at Disco, launched by Google just this past March. In Lusskin, the plaintiffs are claiming that the Disco app gives Google the ability to “harvest all phone numbers” added by consumers so that Google “can independently send its own text message advertisements” promoting the Disco application. Individuals can use Disco to input names and mobile phone numbers (into groups); however, no permission or consent is required from someone whose name and number are added! When the group starts, Disco sends a message to members welcoming them, instructing them how the service works and how they can opt out. Once the groups are formed, messages can be sent from a single source, for a single charge, to all group members. Each member of the group receives the message and each can respond and, you guessed it, each response is sent to every other group member – an SMS mobile “chat room.”

Unbeknownst to Mr. Lusskin, he was added to one of these Disco groups and his mobile phone notified him of a text message from an unfamiliar number – the “welcome” message from Disco. Unfortunately, the “chat room” quickly turned into an angry and confused barrage of messages from the other unsuspecting group members responding to Disco’s first, unsolicited message. Messages poured in so rapidly and voluminously that Mr. Lusskin claims he was unable to use his mobile phone until the alleged 105+ SMS messages had all been received. Mr. Lusskin has filed as a class action, seeking relief for all persons who received the unsolicited initial welcoming text message from the Disco service. Mr. Lusskin also wants to include, as plaintiffs in the action, anyone who opted-out of the Disco service within 24 hours of receiving an unsolicited welcoming text message, or who was a member of a Disco group that was closed within 24 hours of its creation.

With a potential penalty of $500 in damages for each TCPA violation – each unsolicited message (and triple that number if a plaintiff can show the violation was willful or knowing) – no wonder consumers are seeking to use the TCPA to get some attention, or rather seeking to avoid getting unsolicited attention.

Are you in the mobile marketing arena? Need to understand the rules and regulations surrounding the medium? If you are an advertiser, marketer or sponsor involved in promotions, the message (content), we can help you keep abreast of Lusskin and its brethren as they seek to carve out a place under TCPA regulation. If you need help, contact Judith L. Harris, or me, Joe Rosenbaum, or any of the Rimon attorneys with whom you regularly work.