It was originally going to be named "commercial misappropriation"
But the focus groups didn't think it was hip enough for the kids!
So, they settled on Facebook.
A judge has thrown out a potential class action lawsuit against Facebook over its use of photos of minors in targeted ads, ruling that the users gave their consent when they signed up for the social network. The suit accused the firm of "commercial misappropriation" of the names and pics of minors who were using the social …
Most people do not bother, partly because they are often long/hard-to-understand and partly because unlike a normal contract they are non negotiable - and most often because they are lazy/will-not-take-the-time.
Maybe people will slowly start to understand that they are agreeing to things, even if they can't be bothered to find out what.
What is needed are a set of standard agreements that have been approved by trading standards or similar ... they could have attached schedules to deal with thing like delivery times.
The problem with a set of standard is invariably the impossible to calculate number of future things a site may have to ask your agreement for. The law is so complex to do practically anything at all with any data lots of different agreements need to be sort. There isn't really any way around this other than a lengthy document asking for you to agree to all of those specific things that particular site or application requires by law to seek. The only thing I would recommend is a simplification of the language used. Ultimately if a user is bothered enough to take a company to court, they should be bothered enough to take 10 minutes to read the terms before joining a site, provided those terms can be written in plain English.
"The problem with a set of standard is invariably the impossible to calculate number of future things a site may have to ask your agreement for."
Boo effing hoo. If some damn business want to violate my data in new and innovative ways, they can ask for permission AGAIN.
"... standard agreements that have been approved by trading standards ..."
And how would you classify the standard "social media" Ts&Cs -- "All rights are transferred to us, and we can change these conditions at any time so as to benefit us, oh and you have agreed just by reading this." The only appropriate classification would be "Here be Dragons -- run for your lives!"
You and the judge are both twits. The very fact that they are minors means they aren't legally considered competent to sign such a contract. The FB defense should have failed before it started.
Adults you have a better case on. But I think there's still sufficient "it can't be negotiate so it isn't a real contract" basis to take it to court in front of a competent judge.
> Most people do not bother,
I don't bother because it's not a contract at all, just a wishlist, more often than not with illegal wishes/terms -- like for instance that they own the copyright to all photos you upload. It is troubling that the judge referred to the ToS instead of pointing out that a Facebook profile page is public, so the user can not reasonably expect that what he posts on the profile page is private.
I disagree. What is needed is T&Cs that are written in language that you don't have to be a lawyer to puzzle out. I'm pretty good at reading legalese but even I get a headache trying to go through FB's T&Cs. I doubt there are many minors who would be able to work out what they're agreeing to at all.
I find it .. funny ... that many people seem to hold the belief that all of the web, in the widest sense, should somehow become public property.
I can - almost - understand it with the Internet itself (the tech and systems), but where do people get the idea that a corporation - even one as vacuous as Facebook - should suddenly start playing nice simply because it has become widely popular?
The same was/is true of Google. As soon as it became the world's search engine, everyone started complaining that their lax attitude to privacy was a problem. While it may well be a problem, it seems ... funny ... that people seem to believe it should/will ever be any different.
The only thing of any value on the web is its users - Everything else is just the stuff the users pay for.
No no no no. You have it all wrong. They own everything you do, but you never ever own anything they do. Upload that photo? They can sell it a million times. Download their song, well if you share it once it's off to prison with a million dollar fine.
Talk about one sided. But then again, it's all in the contracts... :(
It's part of the cost of using the site/service for FREE.
People need to start teaching Self-Responsibility and Self-Accountability to their kids.
California is the biggest abuser of raising entitlement-minded individuals.
Running FaceBook costs money. If the public still hasn't gotten the idea that NOTHING is free.
Then they are simply to stupid to ever learn.
Yes (but why am I wrong?)
OK, I could have typed, "Only users (and so their data) are of any value ..."
As GotThumbs put, people need to realise that it is only free at the point of use. Why would Zuck (or anyone else) spend lord knows how much, running that many servers, if he couldn't make cash out of it?
And the only way he can make cash out of it, is by charging companies to advertise (or sell games ... or whatever) to users.
He will use whatever data he can, from the mine, to exploit the resource; without charging the resource. The ... funny ... point is, everyone should know that (but apparently, doesn't).
In the web-age, it seems there is nothing as easily parted as a fool and his data ;-)
He will use whatever data he can, from the mine, to exploit the resource; [ ...]
While you may be empirically correct, that's not what's supposed to occur. A more correct statement would be:
He will use whatever data he is legally allowed to use, from the mine, to exploit the resource; [ ...]
And according to all current contract law I'm aware of, minors cannot enter into legally binding contracts, period. And since agreeing to the T&Cs constitutes an attempt at a legally binding contract, the terms and conditions cannot be enforced against a minor. Now one could argue whether a minor should be allowed to use Faceplant at all...but that is a separate discussion for another time.
I wouldn't disagree that anyone under the age of ... whatever age can't agree to terms and conditions in the country where said "minor" lives ... shouldn't be using the Internet unless their parents/guardian accept responsibility for their use.
... There is no running away from the argument you invite, in your defence, on this site ;-)
There will be terms and conditions from the Access Provider to get onto the web and if "kids" can't legally agree to those terms and conditions then whether or not they can sign up to Facebook is, I think, a moot point.
As with the hullabaloo surrounding porn sites (I was shocked to see a BBC trailed study reporting 6% of 17 year olds used such sites!); if people want a strictly controlled web, then bullet-proof age-verification is the only way forward.
That said, motor car manufacturers do not require that you insert a credit card before driving off. They are allowed to assume the parents are looking after the keys ;-)
I thought the reason minors can't sign contracts is because they are not allowed to by law, in order to protect them from having their rights abused (or being tricked into giving them away) when they may not understand the consequences of their actions. It's not because they can't hold a pen or click in a box - it's because even if they do, it doesn't count under law.
Thus the statement "Seeborg said that the default rule that minors could sign contracts in the same way as an adult" makes no sense to me.
Can anyone clarify?
In the U.K. at least, I think the legal principle is that a contract cannot (could not?) be enforced against a minor, and contracts with under-sevens and those 'unfit' through mental incapacity are deemed void.
For older minors, they can enter into a contract but they can also terminate it at any time, and the redress (if any) available is limited to damages, which is why guarantors are often required in such circumstances.
Obviously California law applies in the case reported, and it sounds as if the applicable law is similar in respect of minors being able to enter into legal contracts, which means the terms that allow Facebook to use the minor's shared data is a valid contractual term.
See "Contracting With Minors", State Bar of California, Business Law News Issue 4, 2008 by Robert N. Pafundi 
Since 1971, the age of majority in California has been 18 for both men and women. The general rule is that a minor may make a contract in the same way as an adult, subject to the power of disaffirmance. See Family Code § 6700.
However, some contracts with minors, such as those “relating to real property or any interest therein” or “any personal property not in the immediate possession or control of the minor” are void from the time they are entered into ( Family Code §§6701(b) and 6701(c)).
In addition, a minor is also prohibited from delegating the power to contract on his or her behalf. (Family Code § 6701(a)).
But most contracts, except those that are statutorily prohibited, may be “disaffirmed by the minor before majority or a reasonable time afterwards or, in the case of the minor’s death within that period by the minor’s heirs or personal representative.” Family Code § 6710.
The effect of this rule is that the minor can unilaterally void or disaffirm the contract, or decide to enforce it against the other party (unless the other party is also a minor).
The minor can disaffirm the contract orally or through an action that manifests an unequivocal intent to repudiate the contract. See, e.g., Spencer v. Collins (1909) 156 Cal. 298, 303; Celli v. Sports Car Club of America (1972) 29C al.App.3d 511, 517. See also Pereira v. Toscano (1927) 84 Cal.App. 526 (holding that an oral statement was sufficient to disaffirm a contract).
The minor, however, cannot disaffirm parts of a contract and seek to enforce its other provisions. It is all or nothing. See Holland v. Universal Underwriters Ins. Co . (1969) 270 Cal.App.2d 417, 421.
The generally protective approach to minors who contract is warranted. Even in our media - saturated culture where children seemingly mature faster than they used to, children are substantially more vulnerable than adults with whom they contract. But as children have wielded more economic power, and as some contracts with minor actors and athletes can involve tens of thousands if not millions of dollars, California law has developed tools that increasingly give those contracting with minors the ability to enforce those contracts.
The most straightforward way to enforce a contract with a minor and overcome the minor’s common law right to void the contract unilaterally is to obtain pre-approval of the contract from a superior court. Family Law §6751 establishes an underutilized procedure for obtaining such approval.
Under that section, “[a] contract, otherwise valid, . . . entered into during minority, cannot be disaffirmed on that ground either during the minority of the person entering into the contract, or at anytime thereafter, if the contract has been approved by the superior court . . . .” A Superior Court has the authority to pre-approve the contract if it is located “in any county in which the minor resides or is employed or in which any party to the contract has its principal office in this state for the transaction of business.” Thus, a business headquartered in any California county may seek court approval from its local superior court regardless of where the minor lives or works.
 http://pafundilawfirm.com/Articles "Contracting With Minors: How California Lawmakers and Courts Deal with Adults Who Enter Contracts with Minors"
And to expand on TJ1's point, since all Facebook users can terminate the contract by deleting their account, it does appear that Facebook is playing by the rules here. Regardless of how creepy I think Facebook is, I consider this a good result. I would hate to see more websites ban everyone under 18 from using them at all the way most already do for people under 13 as the result of another law.
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> It's California. The law of England and Wales doesn't apply.
Except at one point the were the same law. Chances are that the relevant principles have not changed since that time.
Yes Virginia, there are legal precedents taught in American law schools that predate Columbus or any American jurisdiction. That's a nice feature of our joint legal heritage (the precedent).
Now France vs. California is an entirely different kettle of fish.
And shrinkwrap agreements that you cannot read before buying the product aren't either.
If you review your commercial law, a contract is an agreement between two parties for an exchange of goods and services. Once the agreement is signed, it becomes legally binding and cannot be changed without the consent of both parties. Any clause that is deemed illegal is automatically void and cannot be invoked by either party. Any clause that allows one party to change contract clauses without consent from the other party is therefor illegal.
T&Cs are imposed on the user and can be changed without user consent (usually via a clause that explicitly states the fact) ergo they are not a contract.
I am sick of hearing companies spout this nonsense without getting shot down by a first-year law graduate.
To set out the Ts&Cs in such a way, varied from one territory to the next, that they simply say you have to be of whatever the local consensual age is to be able to sign the Ts&Cs, since it's of no value to them to have users they can't exploit for revenue generating purposes.
You thought that was worth a '-1'? Really?
Clearly what happens is when they are made aware, they delete the account and remove the images. If you can prove they continue to use the material afterwards then maybe you have a case. But they can't be sued for it when they're the victims of deception, regardless of the age of the perpetrator.
T&Cs commonly have a paragraph stating which law governs, as in 'this contract shall be governed by laws of the State of California.' While IANAL, I have been taught that a contract is 'a meeting of the minds,' and any contract for which you can't negotiate is an adhesion contract and thus unenforceable, but that may vary by state...
Nope, that's been decided at the Federal level and therefore is binding on the States.
The judge is just flat wrong on this one. FB is essentially in the same spot all the Pr0n companies who made films/vids of Traci Lords were in when she sued them for exploiting her when she was a minor.
I have to admit to feeing pretty bemused about this whole case. Facebook has <u>always</u> stated that they are allowed to use any information, photos, or whatever you put on Facebook in whichever way that Facebook wants. Basically they can sell everything about you to whoever they want, whenever they want; if they want to use your picture in an ad then they can do so. On the face of it then the judges ruling (parking to one side issues relating to minors) is completely correct.
While true, this is not the case for say "top secret documents" they may acquire. The government would not allow them. Or in this case "data from minors" one would presume. They can say "we will do anything we wish", but in actuality, they have to follow law like everyone else. Well, so we thought.
"Basically they can sell everything about you to whoever they want, whenever they want"
Quite, which is exactly why I erased my WhatsApp account the second I found out that Facebook were buying them (and, more to the point, their mobile phone number database).
Downvoted for not getting it.
Yes AN ADULT can be expected to be responsible for their own actions, and should suffer the consequences. But we're not talking about ADULTS here.
Despite what you may think about 13 year olds (and younger) finding FB "cool" and wanting to go on it because their friends do, they are not capable of understanding the T&Cs.
I've never used Facebook, and I don't like what they do, but to be honest their T&Cs (https://www.facebook.com/legal/terms) don't look too bad. They are shorter and more readable than many online T&Cs I've looked at. Also, note this:
"For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."
Unlike some T&Cs I've looked at there is no mention of "perpetual" or "irrevocable". So, if you don't like what Facebook is doing with your data you can at any time make them stop it by deleting your data or your account. You want monetary compensation for the use Facebook has already made of your data? Well, in that case I think Facebook are quite right to tell you to bugger off. Why should they be responsible for you or your cat's actions?
ironically, in contravention of the sites T&Cs in the first place (which specifically forbid you from allowing 3rd parties [law enforcement excepted] into your account).
At least Twitter, Hotmail, Yahoo, Google, and LinkedIn do, I can't speak for Facebook.
If *I* asked an employee for access to their personal account, and they gave it to me, I'd mark them down as a security risk, and make damn sure they hadn't any access to confidential data. If they can't follow the T&Cs of (say) LinkedIn, they're hardly going to follow my security guidelines.
And yes, I know all the services above are happy to ask you for your account details for other services. Doesn't make it right.
"ironically, in contravention of the sites T&Cs in the first place (which specifically forbid you from allowing 3rd parties [law enforcement excepted] into your account)."
Oh, I know. But there was/is a trend in demanding such access from interviewees in order to assess if they are suitable employees.
"And yes, I know all the services above are happy to ask you for your account details for other services."
That's subtly different. With OpenID/OAuth etc they never get a password; what they get is a certificate that you generate (well, OpenID/OAuth generate) that allows that service and only that service whatever access you deign to grant (level of granularity determined by OpenID/OAuth provider).
You can rescind that cert at any time.
Yes. But as explained above it's only binding on the other party. That means the minor has the right to say "I didn't understand what I was agreeing to, let me out", but unless or until they do, it's still valid. If there's any practical difference between that and canceling your Facebook account as any user can do, that might be something they could have a lawsuit about.
There are standards in consumer protection law, and these standards are and can be explained in simple language on consumer help websites. So why should the web be any different? Why are we all expected to understand legalese or be lawyers?
The T&C merry-go-round is becoming tiring. There should be a 10-steps charter or something simple and short and sweet that gives or takes away basic rights and can be read by a 5 year old in under 5 minutes.
Instead its always the same defensive attitude by shitty-corps: We-hired-a-lawyer and you didn't, so f*ck off! But this has little to do with reality. Who apart from judges and lawyers has the time to read a T&C, never mind fully appreciate it with all its implications, aspects and nuances?! The status-quo on web agreements and EULAs is a complete joke and needs to be gutted! But then again, if I was lawyer, and lobbyist what would I really want? I'd want a congress that is dominated by lawyers!
Those suing may not have won their case but the judge did do their cause a favour by reinforcing the perception that Facebook's users are in fact Facebook's product. This may well drive many users, particularly parents, to read (again?) the T&Cs they agreed to and re-consider whether Facebook is worth the cost.
Consider if the class action had succeeded. They may have got some compensation and Facebook would be forced to change their T&Cs in some legally significant way. But given that few people read the T&Cs anyway, it would be business as usual.
A quick dig around the internet brought up this points - under English law - on the subject of minors and contract law.
Minors under 7 cannot enter a contract, minors 8 or above can enter a contract
Presumption is that a minor may not understand the implications of a contract, and therefore have protection so minors can always terminate a contract (magic word is "voidable") without giving a reason
Some contracts with minors relating to education, employment and apprenticeships can be binding (provided the minor understood the contract) but the court might not enforce it.
I suppose a hypothetical company could argue that - if the contract could be shown to be understandable, whatever was being contracted for was legal, and the child had ticked the accept button - they had not done anything they could be taken to court for. But I doubt many minors could explain the T&Cs of online services even if they did take time to read them.
Section 10.4 - "Facebook claims the perpetual world-wide exclusive rights to use your Genetic Material (here after referred to as "DNA") in anyway they deem fit, including all works derived there-from. A limited license is granted for DNA self-duplication as a function of cellular Mitosis (subject to annual review/approval.)"
What "benefits" are Facebook users receiving from using Facebook, particularly minors. We're not talking about the potential to become more popular with Facebook "likes" or "followers". This is the reason why I've never identified myself on the web with my birth name and instead, use a variety of pseudonyms. Facebook sucks. Way to buy off a judge who apparently doesn't care much about privacy, particularly minors.
I can prove it. In the weeks leading up to the 2012 election FB informed me that one of my friends liked John McCain. Two things are wrong with that. First, this man was like a second father to me. I'm familiar with his political leanings and he was unlikely to vote for either of the two major parties. Even if he did, he'd not have made it public knowledge who he was voting for till after the fact.
Second, note that I'm using past tense here. That's because he died in a motorcycle wreck a little over a year before FB tried to tell me that he liked John McCain.
So, yeah. Facebook lies when it tell you what your friends like. The proof doesn't get much more rock solid than a dead guy who never discussed politics until after an election was over telling you who you should vote for.
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