Facebook Faces Class Action Over Facial Recognition

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Apr 27, 2018

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FacebookFacebook is facing a class-action lawsuit over its use of facial recognition technology on photos uploaded by users.

As I explained in this blog post,

A class action, also called a representative action or a class suit, is a lawsuit in which a group, or class, sues another party or group of parties. Class actions may be brought both in federal and state courts and they allow the courts to manage lawsuits that would overwhelm the courts if each plaintiff sued individually.

A proposed class must consist of individuals and/or business entities that have suffered a common injury or group of injuries.

Class Actions

In order to be certified as a class action under federal law, a case must meet the following requirements:

  1. the class is so numerous that joinder of class members is impracticable (numerosity);
  2. there are questions of law or fact common to the class (commonality);
  3. the claims or defenses of the class representatives are typical of those of the class (typicality); and
  4. the class representatives will fairly and adequately protect the interests of the class (adequacy).

Class actions can have a number of benefits for plaintiffs. For one thing, it may not be cost-effective for a plaintiff to sue individually if the damages would be less than the expenses of the lawsuit.

Privacy

As NPR reports about the latest Facebook case,

The plaintiffs are three Illinois Facebook users who sued under a state law that says a private entity such as Facebook can’t collect and store a person’s biometric facial information without their written consent. The law, known as the Biometric Information Privacy Act, also says that information that uniquely identifies an individual is, in essence, their property. The law prohibits a private entity from selling, leasing, trading or otherwise profiting from a person’s biometric information.

The Illinois law is the Biometric Information Privacy Act.

As the judge’s decision notes,

plaintiffs are Facebook users who challenge its “Tag Suggestions” program, which scans for and identifies people in uploaded photographs to promote user tagging. Plaintiffs allege that Facebook collects and stores their biometric data without prior notice or consent in violation of their privacy rights….

The plaintiffs are seeking to represent potentially millions of Facebook users in Illinois.

Billions in Damages

The plaintiffs are seeking penalties of up to $5,000 for each time a person’s image was used by Facebook without his or her permission.

That statute provides for damages of $1,000 for each negligent violation of the Act, and $5,000 for violations that are “intentional and reckless.”

Damages could thus add up to billions of dollars.

Certifying the class just means that the case can proceed as a class action — not that the plaintiffs have won.

The plaintiffs still need to prove that Facebook actually violated the Illinois law, in order to recover compensation under the Act.

The case is likely to involve what Facebook users agreed to when they signed up for its Terms of Use.

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