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1 2 3 COOLEYLLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) MATTHEW D. BROWN (196972) (brownmd@cooley.com) MEGAN 1. DONOHUE (266147) (mdonohue@cooley.com) 101 California Street 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Attorneys for Defendant FACEBOOK, INC.
SUVJ!!KIOR

, FIL£D
OEC 1 6 2010

COURT OF CALIFORNIA COUNTY OF LOS ANGELES

45 6

John A. Clarke, EXi:_tive Officer/Clerk . BY ~-:{/~ Deputy

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Alvarez

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7
8 9 10 11 12 13 14 15 16 DAVID A. COHEN, a minor, by and through ROBIN S. COHEN as Guardian ad Litem; SHELBY A. ORLAND, a minor, by and through MARCIA 1. ORLAND as Guardian ad Litem; for all others similarly situated, Plaintiffs, No. BC444482
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FACEBOOK, INC. 's DEMURRER TO PLAINTIFFS' COMPLAINT

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES

v_ FACEBOOK, INC., a Delaware Corporation, and DOES 1 through 100, Inclusive,

Defendants. Date: Time: Judge: Courtroom: March 17,2011 8:30 a.m. Han. Debre Katz Weintraub Aug. 26, 2010 Not set

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19 20 21 22 23 24 25 ,; ...,' ~ :.'
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Complaint Filed: Trial Date:

B~FAX

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COOLEYLLP
AtTOMNlTS SAN AT LAW FR"NC'SCO

FACEBOOK,

INC.'S

MPA l/S/O

DEMURRER

TO PLAINTIFFS'

CLASS ACTION

COMPLAINT

- CASE

No. BC444482

TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF THE ARGUMENT STATEMENT OF FACTS LEGAL STANDARDS ARGUMENT
A. B. 47 U.S.C. § 230

1 2 4 5
5

Plaintiffs' Claims are Barred by the Federal Communications Decency Act, Plaintiffs Fail to State a Claim under California Civil Code Section 3344
I.

8 9 12 12 12

Facebook's re-publication of the fact that a User likes certain products and services is newsworthy and exempt under section 3344(d) This construction of section 3344 is supported by the doctrine of constitutional avoidance " The Complaint fails to allege facts that would support the elements of section 3344 : a. b. c. The Complaint fails to allege any injury The Complaint fails to allege that Facebook uses names or likenesses for its advantage, commercial or otherwise ,

2.

3.

13

The Complaint fails to allege that publication of "landing pages" is for "the purposes of advertising.".. 14
15 15 16 17 17 20

C.

Plaintiffs Fail to State a Claim for Violation of the California Constitutional Right to Privacy
1. 2.

Plaintiffs fail to allege a legally protected privacy interest. Plaintiffs fail to allege a reasonable expectation of privacy in the circumstances ~lain~iffs fail to.alleg~ conduct by Facebook that constitutes a serious InvaSIon of a pnvacy Interest
>

3.

D.

Plaintiffs Fail to State a Claim for Violation of California Business and Professions Code Section 17200

CONCLUSION

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FACE BOOK, INC. 's MPA 115/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE NO. BC444482

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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TABLE OF AUTHORITIES Page

CASES

Abdul-Jabbar v. General Motors Corp.•

85 F.3d 407 (9th Cir. 1996) 13

Animal Legal Defense Fund v. Mendes,

160 Cal. App. 4th 136 (2008) 17

Barrett v. Rosenthal,
40 Cal. 4th 33 (2006) 5

Blatty v. NewYork Times Co.,

42 Cal. 3d 1033 (1986) 12

Branzburg v. Hayes,
408 U.S. 665 (1972) 11

Californians for Disability Rights v. Mervyn's, LLC,

39 Cal. 4th 223 (2006) : 17

Camacho v. Auto. Club o[S. Cal.,

142 Cal. App. 4th 1394 (2006) 20

Carafano v. Metrosplash. com, Inc.,

339 F.3d 1119 (9th Cir. 2003) 5, 8

Cel- Tech Commc 'ns., Inc. v. Los Angeles Cellular Tel. Co.,
20 Cal. 4th 163 (1999) 19,20

Daar v. Yellow Cab Co.,

67 Cal. 2d 695 (1967) 13

Davis v. Ford Motor Credit Co. LLC,

179 Cal. App. 4th 581 (2009) 20

Delfino v. Agilent Tech., Inc.•

145 Cal. App. 4th 790 (2007) 5,6

Dora v. Frontline Video lnc.,

15 Cal. App. 4th 536 (1993) , ·.9

Downing v. Abercrombie & Fitch,

265 F.3d 994 (9th Cir. 2001) 13

26 27 28

'I:·
'I ~

"

"

I,', ·1'

"~

-)-

FACEBOOK, INC.'S MPA I1S/O DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT-CASE

No. BC444482

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,,' .,
,,\

T ABLE OF AUTHORITIES (continued) Page Drum v. San Fernando Valley Bar Ass 'n, 182 Cal. App. 4th 247 (201 0) Evans v. City oj Berkeley, 38 Cal. 4th 1 (2006) Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) Finkel v. Facebook, Inc., No. 102578/09,2009 N.Y. Misc. LEXIS 3021 (N.Y. Sup. Ct. Sept. 15,2009) Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (1996) Gentry v. -ellay, Inc., 99 Cal. App. 4th 816 (2002) Goddard v, Google, 640 F. Supp. 2d 1193 (N.D. Cal. 2009) Hill v. Nat 'Z Collegiate Athletic Ass 'n, 7 Cal. 4th 1 (1994) In re Tobacco 11 Cases, 46 Cal. 4th 298 (2009) INS v. St. Cyr, 533 U.S. 289 (2001) JetBlue Airways Corp. Privacy Litigation, 379 F. Supp. 2d 299 (E.D.N.Y. 2005) Kathleen R. v. City oj Livermore, 87 Cal. App. 4th 684 (2001) Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) Longshore v. Cnty. of Ventura, 25 Cal. 3d 14 (1979) Lowe v. S.E. c., 472 U.S. 181 (1985) , , . , 19 12 18 5 20 4 10 , :..: 20 15 7 5, 6, 7 8 passim 8 15, 16, 17

26 27 28

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-iiFACEBOOK, INC.'S MPA 1/8/0 DEMURRER TO PLAINTIFFS' CLASS ACfION COMPLAINT - CASE

No. BC444482

1 2 3 4 5 6 7 8 9

TABLE OF AUTHORITIES (continued) Page Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995) Moreno v. Hanford Sentinel, Inc.• 172 Cal. App. 4th 1125 (2009) Morningstar, Inc. v. Superior Court of Los Angeles Cnty., 23 Cal. App. 4th 676 (1994) Newcombe v. Adolf Coors Co., 157 F.3d686 (9th Cir. 1998) Paradise Hills Assoc. v. Pr.ocel, 235 Cal. App. 3d 1528 (1991) People v. Herrera, 124 Cal. App. 3d 386 (1981) Perfect IO Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) Ramey v. Darkside Prod., Inc., 2004 WL 5550485 (D.D.C. 2004) Santa Clara Cnty. Local Transp. Auth. v. Guardino, 11 Cal. 4th 220 (1995) Shulman v. Group W Prod., lnc., 18 Cal. 4th 200 (1998) Slivinsky v. Watkins-Johnson Co., 221 Cal. App. 3d 799 (1990) Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010) Thompson v, Home Depot, lnc., No. 07-cv-l058 (lEG), 2007 WL 2746603 (S.D. Cal. Sept. 18,2007) Troyk v. Farmers Group, Inc., 171 Cal. App. 4th 1305 (2009) . . 16 5 7 12 9, 10, 11 12, 13 10, 11 18 18 : 9 16 10 8, 13, 14,15 10

10
11 12 13 14 15 16 17 18 19 20 21 22 23 24

25
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FACEBOOK, INC. 's MPA I1SIO DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

-iii-

No. BC444482

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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TABLE OF AUTHORITIES (continued) Page \Virginia State Ed. of Pharmacy v. Virginia Citizens Consumer Council, I 425 U.S. 748 (1976)
I

10, 11

:Vov. City of Garden Grove,

115 Cal. App. 4th 425 (2004)

16

Waits v. Frito-Lay, Inc., I 978 F.2d 1093 (9th Cir. 1992)

,

13

'whiteside v. Tenet Healthcare Corp.,

\ 101 Cal. App. 4th 693 (2001) ~

18
7

Zeran v. Am. Online, Inc.,

\ ' 129 F.3d 327 (4th Cir. 1997)
~TATUTES

I
Communications

California Business and Professions Code § 17200 : § 17204

California Civil Code I § 3344 § 3344(a) § 3344(d) § 3344 (2) I § 3479 et seq,
I

I'

Decency Act, 47 U.S.C. § 230 et seq

.
,', ,', ..,.." ,',

passim

passim 17

,'"", .. .., " , ,

,"', ,.,', .." ,", : ,"',., ,""',

passim 11, 13 passim

1
5

"

C~lifornia Code of Civil Procedure i § 425. 1O(a)(I) I §430.10(e) \ § 526a

4
4

5
5

CLfomia

~ov't Code § 835 et seq

26 27 28

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FACEBOOK, INc. 's MPA I1S/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE No. BC444482

I·
I

-iv-

•
1

2 3 4
5 6

T ABLE OF AUTHORITIES (continued) Page

\OTHER AUTHORITIES
'CAL. CONST. art.

I,§ 1

18

CAL. CONST.

7
8
9

U.S. CONST. amend. I I

art. I, § 2

12

12

10
11

12 13 14
15 16 17 18 19

20 21 22 23 24 25
':.: " 'I; ;.\ .,'
d I,~

26 27 28 I
~vNo. BC444482

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FACEBOOK, INC.'S MPA 1/8/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT-CASE

I.

INTRODUCTION AND SUMMARY OF THE ARGUMENT Facebook is a social network that enables users to connect and share content with their

2
I

3 4 5 6 7 8 9

family and friends.

I I

On Facebook's website, each Facebook user ("User") creates a personal

,

network of Facebook "friends" and also creates a profile page on which to post information that the User wants to share with his or her network of friends, and on which the User's friends can ~so post greetings and other information. To create a profile, a User need only submit his or her
I '

name, age (Users must be over the age of thirteen to use Facebook), gender, and a valid email address; the User may also, but is not required to, upload a "profile picture." Facebook enables Users to share information and comments about virtually anything-such news about their day, or opinions about world' events.

as vacation photos,

10 11 12
13

friends that they "like" certain content, such as a political figure, product, brand, website, musician, or cause. Facebook is, and has always been, a free service. . '

Users can also communicate to their

The Complaint, brought on behalf of a putative class of minors ages 13 tluough 17 who ~e Facebook members, alleges that Facebook 's very operation-in particular, Facebook's re-

14 15
16 17 18 19

dublication of a User's "likes" along with the User's name and/or likeness to the User's friends, the very audience with whom the User already shared the information-violates
I
I

(I) California

'

Civil Code section 3344, (2) the California constitutional right to privacy, and (3) the California Unfair Competition Law, Business and Professions Code section 17200. The Complaint also
I

alleges, contrary to fact, that Facebook enables minors to create public search listings (which the Complaint calls "landing pages")-i.e.,

20 21 22
23

stripped-down profile pages, including a User's names

and/or likeness, that can be found by searching for the User's name on Google or other search e4gines.
I

Plaintiffs allege that Facebook uses those listings to encourage the searcher to join

F~cebook, which increases Facebook's User population, thereby enabling Facebook to demand a higher price for advertising on the website.
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25
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COO1..EYLLP
ATlOlluHU AT LAW SAN FIIAtKJSCO

Decency Act, 47 U.S,C. § 230, bars all the causes of action, which attempt to hold Facebook
I,

Plaintiffs' three causes of action fail as a matter of law. The federal Communications

liable for re-publishing information content provided by the Users themselves (their names, likenesses, and "likes"). As many courts have held, this statute, expressly enacted to promote the

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F rEBOOK,
I

1.
INC.'S MPA 1IS/0 DEMURRER TO PLAINTIFFS' CLA&< ACTION COMPLAINT - CASE No. BC444482
•

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I

.development 2 3 4 5 6 7

of the Internet

and interactive

media,

protects

websites

from liability

for re-

publishing information posted by users. For this reason alone, the Demurrer should be sustained.

Even if the three causes of action were not barred by 47 U.S.C. § 230, the Demurrer

should be sustained because the Complaint fails to allege facts necessary to support one or more

elements of each cause of action.

I

First, Plaintiffs' cause of action under Civil Code section 3344

exemption codified in section 3344(d) protects with whom the User previously
,

should be dismissed because the "newsworthy" Facebook's

I

re-publication

of a User's

"likes" to the audience

8
9 10

~hared information.

light of the substantial

This is particularly First Amendment

so when the Court construes the statute, as it must, in concerns that would be raised by a ruling that would brand, political

Inhibit Users' ability to communicate candidate, or cause, or Facebook's

I
I

to their friends that they like a product,

11
12 13 14 15 16 17 18 19 20 21 22 23 24 25
"I

ability to re-publish that information.

Further, the Complaint

fails to allege the injury necessary to state a claim under section 3344, that Facebook uses names dr likenesses for its "advantage"

"landing pages" is for "the purposes of advertising." Califomia Constitution

in the manner required by law, or that alleged publication

of

should be dismissed because the Complaint expectation

Second, Plaintiffs'

cause of action under the

fails to allege any protected

JrivaCy interest, reasonable

not and cannot allege they suffered "injury in fact" and "lost money or property"
I

of privacy, or invasion of privacy.

Third, Plaintiffs do
as a result of Business and

uhfair competition,

.'

and, as such, they lack standing

to bring a claim under

Professions

Code section 17200. Moreover, the Complaint fails to allege facts that would support "fraudulent," or "unfair" prongs of section 17200.

such a cause of action under the "unlawful,"

F1r these reasons, the Demurrer should be sustained and this case should be dismissed.

II. I
\

STATEMENT OF FACTSJ
According to the Complaint, Facebook operates a free social networking website with

over 500 million active Users.

I
I

(Compl.,

14.) Facebook allows Users to create profile pages that

must include their names, and may, but need not, include a "profile picture" chosen and uploaded

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COOLEYLLP
ATI01l:NEY5 AT LAW

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1 This Stat~ment of Facts is based on the allegations in the Complaint, which Facebook assumes as\ltrue for purposes of this Demurrer but which Facebook does not thereby admit.

2.
FACEBOOK,

S~N

FR,,}.ICISCO

lNC.'S MP A I/S/O DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT

- CASE No. BC444482

,.

Iby the User?

2 3

(fd. , IS.) Through their profile pages, Users can create a network of friends and
preferences, and other information, including

\share content, such as personal news, thoughts,

4
5

!photos and videos. (ld." 12, 15.) For instance, a Facebook User might post a comment about a ~ ipolitical figure and encourage his or her friends to vote in upcoming election-a comment that
\

an

jwould appear on the User's Facebook profile page. Ito each of the User's friends on their respective

Such updates and comments

also are posted

6
7

content updates by each of a User's Facebook friends. \

,

"News Feed" pages, which are running lists of

8
9 10

The Complaint

alleges that one type of content

a Facebook (Compl,

User might

share with

Facebook

friends is the fact the User "likes" certain content. that he or she likes a particular website,

'iI 22.)

The User might

10mmunicate
I

political

figure, music group, brand, what they like by re-displaying

11 12 13

lervice, idea, or cause. (ld.) Facebook helps Users communicate ~uch news contextually on 'friends' Facebook pages.

(ld.) For instance, when an ad promoting a

in what his or her

~ewlY released CD appears on a User's page, that User might be interested friends think about the music; if a friend has communicated
1

14
15

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that he or she likes the CD, Facebook

might alert the User to that piece of social news, indicating at the same time the ad appears that
I

16
17

the friend likes that CD. ~OluntarilY communicated

(Jd.' 22.) As the Complaint

by Users.

recognizes,

this "like" information

is

(Jd. 'iI 17 (Facebook

gets information
.'

from "the social

18
19

networking activities of its members");

I

id. , 22 (ads are associated with user names or likenesses

"when their social interaction has indicated that they like a particular web site, person, product or service"; "Facebook encourages its members to communicate such 'Iikes'" but it is Users who the infonnati~n

20 21 22
23

actually do so).) .As the Complaint further acknowledges,

I

Facebook re-publishes

only to a User's existing friends.

(Jd.' 22 (likes are re-published

next to ads "to the effect that

'[your friend] Billy Smith likes this product"').)

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27

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COOlEYLLP
AlfO • .NEYS AT LAW S/tN

Users can and do use a range of photos for their profile pictures, including pets, cars, nature scenes, etc. The Complaint does not allege that the named Plaintiffs uploaded a profile picture that was an actual "likeness" of themselves. .
2

3. No. BC444482

fll. .... (I'-CO N

, ACEBOOK, INC. 's MPA US/O DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

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2

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:minors' I

The Complaint

contains two core allegations, purportedly without

both of which are predicated consent.

3

primarily

on

use of Facebook

their parents'

First, the Complaint

3
4 5· 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
'.'
"

'focuses on Facebook's

re-publication

of the "likes" of minors, along with their names and/or

l
I

likenesses, in association with ads on their friends' profile pages.

(Jd ~ 22.) This re-publication,

right to privacy, and

Plaintiffs say, violates Civil Code section 3344, the California constitutional Code section 17200.

Business and Professions

I
public
I
I

Second, the Complaint

alleges, contrary to fact, that Facebook enables minors to create a calls a "landing page") that can be found when

search listing (which the Complaint

~omeone searches for the User's name on Google or another search engine.

(Id. ~ 20.) According

on the User's privacy

io the
1

Complain~, Facebook

uses the "landing page," which, depending

.

~ettings, may display the User's

picture), to encourage non-users to join Facebook by requiring the non-user to log in to see more
I

name and certain other information

(e.g., the User's profile

df the User's profile page.

I

(Id.) This allegedly increases Facebook's

User population,

thereby

enabling Facebook to demand a higher price for advertising on the website.

I
I

Plaintiffs claim that the

this supposed use of minors' names and likenesses violates Civil Code section 3344, I California constitutional right to privacy, and Business and Professions Code section 17200.

I~I.

LEGAL STANDARDS

A complaint or cause of action can survive demurrer only to the extent it sets forth wellI pleaded facts that establish a right to relief. See Longshore v. Cnty. of Ventura, 25 Cal. 3d 14,22 (1979). clnstitute cJntain
I

A demurrer

must be sustained

where the complaint

fails to "state facts sufficient Plaintiffs' Complaint

to

a cause of action." a "statement of the

Cal. Civ. Proc. Code § 430.1O(e).

must

facts constituting

[each]

cause of action."

Id. § 425.10(a)(1)
as true, "the of law and

(emphasis added). assumption

Although the Court must accept all material factual allegations deductions, or conclusions

of truth does not apply to [the] contentions,

fabt" asserted by a plaintiff.

26 27 28
COOI.EYLLP
ATTORNHS

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II
I

See Gentry v, eBay, Inc., 99 CaL App. 4th 816. 824 (2002).

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The putative class is limited to Facebook Users under the age of 18. (Cornpl. ~ 8.) I Facebook's terms of use, one must be at least 13 years old to use Facebook .

Under

LA.W

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IIS/O

4.
DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

SAN fJl.ANCI5CO

F'ACEBOOK.INC.'S MPA

No. BC444482

I I

IV.

ARGUMENT

2
3 4
I

A. I

Plaintiffs' Claims .are Barred by the Federal Communications

47 U.S.C. § 230.

Decency Act,

I
I
\

Section 230 of the Communications computer service

Decency Act ("COA") provides that "[n]o provider or shall be treated

.

5 6
7

user of an interactive

as the publisher 47 U.s.C.

or speaker

of any Section

information

provided by another information

content provider."

§ 230(c)(I).

230 further provides that "[n]o cause of action may be brought and no liability may be imposed

huder any State or local law that is inconsistent

with this section."

Id. § 230(e)(3).

Facebook is See Finkel v.

9
10 11 12 13 14 15 16 17 18 19 20 21

entitled to such immunity here and, accordingly, all of Plaintiffs'

I

claims are barred.

Facebook,

2009) (granting Facebook's The California

Inc., No. 102578/09, 2009 N.Y. Misc. LEXIS 3021, at *4 (N.Y. Sup.
motion to dismiss under § 230).

ct.

Sept. 15,

Supreme Court has held that by enacting

§ 230, "Congress

intended to

create a blanket immunity

Barrett v. Rosenthal, 40 Cal. 4th 33, 57 (2006) (affirming grant of motion to strike based § 230).
I

from tort liability for online republication

of third party content."

This immunity springs, in part, from the desire to "avoid the chilling effect" on online speech that

liability would impose on websites.

8p2-03 (2007). COA immunity has specifically barred causes of action arising out of California's
I

See Delfino v. Agilent Tech., Inc., 145 Cal. App. 4th 790,

right of publicity.
I

See Carafano v.

Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003)

(~pholding

also Perfect 10 Inc. v. CCBm LLC, 488 F.3d 1102, 1118 (9th Cir. 2007) (affirming website's
I.

§ 230 immunity for interactive dating website against right of publicity claim); see

230 immunity against right of publicity claims, noting "Congress's

I

expressed

goal of insulating also

22
23 24 25 26 27
'~ I

the development e~compasses Livermore,

I
1

of the Internet from various state-law regimes"). and constitutional causes of, action.

This federal immunity See Kathleen

state statutory

R. v. City of

87 Cal. App. 4th 684,697

(2001) (under COA § 230, affirming demurrer to all state-

lak causes of action, including waste of public funds (Cal. Civ. Proc. Code § 526a), public
nJisanee (Cal. Civ. Code § 3479 rlnunity

et seq.), and premises liability (Cal. Gov't Code § 835 et seq.)).

See, e.g., Kathleen R.,

under § 230 is a proper ground on which to sustain a demurrer.

..

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COOLEYLLP
.-.T L~w SAN FIi;A I'tCISCO

871Cal. App. 4th at 697; Gentry, 99 Cal. App. 4th at 830. .

FACEBOOK, INC.'S MPA

5.

ATTOIt"'EY"S

IIS/O

DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE No. BC444482

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COOLEYLLP
ATTO'llNEYS AT LAw SAN FRANCISCO
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Section 230 immunity requires that (1) the defendant be a provider or user of an interactive computer service, (2) the cause of action treat the defendant as a,publisher or speaker lof the information, and (3) the information be provided or developed by another information \content provider. See Gentry, 99 Cal. App. 4th at 830 (§ 230 immunizes interactive computer
I

service providers "from causes of action asserted by persons alleging harm caused by content ~rovided by a third party" where these three factors are met).

I
I
I

All three § 230 requirements are met here. First, Facebook is undoubtedly an "interactive

'~omputer service," which is defined as any information service that provides or enables computer access by multiple users to a computer server and the Internet. See 47 U.S.C. § 230(f)(2); see , I also Finkel, 2009 N.Y. Misc. LEXIS 3021, at *4 (Facebook is an interactive computer service kder

because its website enables users to "provide information (feedback) about other users of the I service")~ Delfino, 145 Cal. App. 4th at 805 (noting "[c]ourts have broadly interpreted the term I . 'mteractive computer service,'" citing authorities).

§ 230); Gentry, 99 Cal. App. 4th at 831 n.7 (eBay is an interactive computer service

I I

Second, Plaintiffs' claims seek to treat Facebook as the publisher or speaker of the

ihformation at issue. The Complaint acknowledges that Users voluntarily communicate that they like a "particular web site, person, product or service." (Compl. ~ 22.) It nonetheless attempts to Jold Facebo~k liable for re-publishing this information along with the minor's name andlor
I

likeness to the User's friends. (Compl. ~~ 31,41, 45.) The Complaint also alleges that Facebook p~rmits Users to create profile pages that may include their names and likenesses and control privacy settings, with the result that individuals who perform an Internet search for a User's name
1

s6metimes will see a 'Facebook "landing page." (Compl. ~~ 15,20,26.)

The Complaint alleges

tJat Facebook is liable for publishing the names andior likenesses on landing pages, even though Je User selects how this information is disc1o~ed. (CompI. ~~ 26, 31,41, 45.) Third, the information was provided or developed by another information content provider, namely by the Plaintiffs themselves. All such information, including a User's name and likeness and opinions about content he or she likes, is voluntarily provided by Users. (Cornpl. ~~ I 1l19.)
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Users often share with their network of friends a v,ariety of information, including
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CASE No. BC444482

FACEBOOK, INC.'S MPA

IIS/O

DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT-

\photographs or videos, personal messages, links to 'other websites, or information surrounding

I

IUPcoming events or special interest groups.

(Compl. ~ 15.)

As alleged in the Complaint,

3
4 5 6 7 8 9 10 11

Facebook Users may also communicate to their friends the fact that they like "a particular web

Isite, person,

product or service." (Compl. ~ 22.) And Facebook informs Users, "[y]ou can use

~our privacy settings to limit how your name and profile picture may be associ~ted with commercial" content on the website. (Compl. ~ 26.) Thus, according to the. Complaint itself, it is Plaintiffs themselves, as Facebook Users, that provided all of the information at issue, including
1

'

their names, likenesses, and indications of items they like. The law is clear that a user of a
I 1

rebsite constitutes "another information content provider" for purposes of § 230. See Gentry, 99 Cal. App. 4th at 831 (website operator cannot be treated as the publisher or speaker of content Jrovided by other information content providers, i.e., the website users).
I
I

12
13 14 15 16 17 18 19 20 21 22 23 24 25
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,I ;!I

\
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'Facebook's

later organization of User-published information in a manner that associates

Nsers' "likes" with advertising content displayed on friends' profile pages does not alter this ahalysis, because the content itself originated with Facebook's Users. Courts uniformly hold that Jebsites do not lose immunity under § 230 based on the performance of editorial functions such al deciding whether to publish, withdraw, postpone, edit, or alter content provided by their users.

See Finkel, 2009 N.Y. Misc. LEX]S 3021, at *4 (Facebook entitled to immunity under § 230 as a
matter of law, even if it had an «active, even aggressive role" in making content available); Gentry, 99 Cal. App. 4th at 835 (liability for editorial functions has been "uniformly rejected by tJe courts"); Zeran v, Am. Online, Inc. 129 F.3d 327, 330 (4th Cir. 1997) (§ 230 precludes courts fr~m entertaining lawsuits that "would place a computer service provider in a publisher's role" even if they exercise traditional editorial functions, so long as the content originated with a thirdplty user); Ramey v. Darkside Prod., Inc. 2004 WL 5550485, at *7 (D.D.C. 2004) (defendant
I

was not an information content provider merely because it edited the ads posted on its website).
I
I

T~is is so even when websites use neutral tools to categorize the content provided by users or
,

26
~

sukgest what content users might provide.

I

See, e.g., Fair Housing Council of San Fernando

" ,,,
"
"I
"I

27 28
CooLEYLLP
AT
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Valley v, Roommates. com, LLC, 521 F.3d 1157, 1172 (9th Cir. 2008) (fact that "interactive I
I

"

'I'

computer service 'classifies user characteristics ...

AnORNE'I'S

II
I

does not transform [it] into a 'developer' of No. BC444482

7.

SAN HA N CISCO

F ACEBOOK, INC.'s MPA 1/8/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

the underlying

information'")

(citing Carafano, 339 F.3d at 1124); see also Goddard v. Google,

2
3 4 5 6 7 8 9 10 11 12

1640 F. Supp. 2d 1193, 1198 (N.D. Cal. 2009) (by providing a keyword search tool to advertisers

!WhO used
\ooogle
1

the tool to post illegal information,

Google did not become the content provider even if so long as the that Facebook are

"should have known" tha~ the tool would lead to the improper posting, determined what content to post). information Thus, Plaintiffs' allegations

\users ultimately organizes

User-published

about content the. User likes, so that such "likes" do not make Facebook

Idis~layed alongside content advertised on Facebook,

'.

into an information pages,"

content provider.

Similarly, that Facebook

allegedly

enables Users to create "landing

including the name and profile picture the User provided, which may be found when non-users ~erform an Internet search, does not transform Facebook Accordingly,

into an information

content provider.

Facebook is entitled to § 230 immunity here. In that case, a California court applied § 230 to Plaintiffs in Gentry had sued over

I
I

Gentry v eBay, Inc. is closely analogous.

13
14 15 16 17 . 18 19 20 21 22 23 24 25 26 27 28
COOLEYLLP
AnuxNE.lS
SAN

dismiss a case against eBay based on its user feedback system.

I
I

allegedly false or misleading feedback created through eBay's system of rating buyers and sellers. 99 Cal. App. 4th at 822.
I

The Court rejected the claim, noting that it "would place liability on

lBay for simply compiling false and/or misleading c~ntent created by the individual defendants," even though eBay itself did not provide the information.

Plaintiffs are attempting to hold Facebook liable for re-publishing

I

I
I

ld. at 834.

The same is true here. that the Plaintiffs

information

themselves originally published on the website. \ B. Plaintiffs

Under § 230, such 'claims are barred.

.

Fail to State a Claim under California

Civil Code Section 3344. use

To state a claim under Civil Code section 3344, Plaintiffs must allege (1) defendant's identity; (2) the appropriation of plaintiffs name. or likeness

olf plaintiffs

to defendant's

ahvantage, commercially by the defendant;

or otherwise; (3) lack of consent; (4) resulting injury; (5) a knowing use of advertising; and (7) a direct connection between the

alleged use and the commercial purpose.

I
I

(6) for the purposes

Fleet v,. CBS, Inc., 50 Cal. App. 4th 1911, 1918 (1996);

Newcombe v. Adolf Coors Co., 157 F Jd 686, 692 (9th Cir. 1998). Because the Complaint does
nlt allege facts supporting several ofthese
I

elements, it fails to state a claim for either Facebook's oflanding pages. Further, Plaintiffs' re-

rJ,-publication of User's "likes" or it alleged publication

A-r LAW'

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F.RANCISC:O

FACEBOOK, INC.'S MPA I/S/O DEMURRER TO PLAINTIFFS' CUSS

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ACTION COMPLAINT - CASE No. BC444482

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I

I
1 2 3 4 5

I
I
I

\publication

allegations

fail to state a claim because

Facebook's

actions are protected

by the

I "newsworthy"
\ I

exemption in section 3344(d).

1.

Facebook's re-publication of the fact that a User likes certain products and services is newsworthy and exempt under section 3344(d).
allege that Facebook violates section 3344 when it re-publishes to a minor

Plaintiffs

6
7

iUser's friends that the User likes a product or service, along with his or her name or likeness, in ~ssociation
I
I

with advertisements however, expressly

displayed to the User's exempts newsworthy

friends. from

(Compl. ~~ 22, 31.) liability under

Section

8
9 10 11 12 13 14 15 16 17

3344(d),

speech

the statute,

providing that "a use of a name, voice, signature, photograph,

or likeness in connection

with any

hews, public affairs, or sports broadcast or account, or any ·political campaign, shall not constitute

1 I
I

use for which consent is required under subdivision

(a)."

CaL Civ. Code § 3344(d).

Because

Facebook's
!

alleged use of Users' names and likenesses falls within this "newsworthy" challenge to Facebook's re-publication

exemption,

the Complaint's
I

of Users' "likes" fails to state a cause of

Jction under section 3344.

I,

I
I
;

What is "newsworthy"

is broadly construed,

and "is not limited to 'news'

in the narrow or facts in when

sense of reports of current events. giving information

I
I

It extends also to the use of names, likenesses,

.

to the public for purposes of education, ..

amusement

or enlightenment,

18
19 20 21 22 23 24 25
'I' .'
I"

the public may reasonably

I

be expected to have a legitimate interest in what is published."

See

Shulman v, Group W Prod., Inc., 18 Cal. 4th 200, 225 (1998) (citing Rest. 2d Torts § 652D, com.

j,\ p.
I

393).

Thus, the key issue is whether

the use of the name and/or likeness interest."

is related to

information

in which the audience has a "legitimate

See Montana v. San Jose Mercury

News, Inc., 34 Cal. App. 4th 790, 793 (1995) (dismissing claim under section 3344(d) because rep~blication of football player's image "report [ed] newsworthy
I '

items of public interest");

see also

Dora v. Frontline Video Inc., 15 Cal. App. 4th 536, 546 (1993) (holding section 3344(d)
precluded claim for use of likeness in surfing documentary aJout things, people, and events that affect it"). because the public is "entitled to know

26 27 28
COOLEYLLP
ATTOIi;NEYS SAN Fu

":. ',' ,,'

'I'

"

I II

The California

Supreme

Court has recognized exception

that "legitimate

interest"

analysis

for

.,'

.'

purposes of the analogous

"newsworthy"

to a claim for public disclosure

of private

AT

LA-loY

9.
No. BC444482

Nf;UiCO

FACEBOOK, INC.'S MPA US/O DEMURRER TO PLAINTIFFS' CLASS ACfION COMPLAINT-CASE

I
1

1 2

facts parallels the analysis in cases involving the constitutional

I Shulman,

right to freedom of speech.

See

18 Cal. 4th at 214-16 (critical issue for both tort and constitutional or absence of a "public interest," noting that "the requirements

law inquiries is the of tort law and the

3 4 5
6

Ipresence
I
i

!Constitution have generally been assumed to be congruent" (citing Rest.2d Torts. § 652D, com. d, !p. 388)); see also Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 681 (2010) ("the tort of iappropriation

7 8
9 10 11 12 13 14

of name and personality,

whether labeled a form of intrusion

into privacy or. a

publicity right, invokes constitutional

I I

protections").

Thus, if there is a legitimate public interest under section

in speech for First Amendment

purposes, the speech also qualifies as "newsworthy"

p344(d). \
I'

See Shulman, 18 Cal. 4th at 216.

Established precedent recognizes that expressions of consumer opinion are matters of

public interest under the First Amendment.

For instance, in Paradise Hills Assoc. v. Procel, the protects a consumer's statements and signs about The court

Court of Appeal held that the First Amendment the quality of a developer's

construction.

235 Cal. App. 3d 1528, 1544 (1991).

JeCOgniZed that members of the public have an interest in "improvjing] their relative position vis-

,IS
16

a-vis the suppliers

and manufacturers

of consumer

goods"

and thus "[tJhey clearly have an

ihterest in matters which affect their roles as consumers."

lr
18 19 20 21 22 23 24 25
:-: ,,'

League v. O'Neill, 371 F. Supp. 644, 648 (E.D. Wis. 1974)).

I

Id. (citing Concerned Consumers

The consumer's Amendment. expression of an

opinion I

about

a product

is therefore

protected

by the First

ld.; see also

Morningstar, Inc. v. Superior Court of Los Angeles Cnty., 23 Cal. App. 4th 676, 697 (1994) I ,
(bpinions analyzing advertisements for financial products are protected by the First Amendm~nt); n.58 (1985) (consumer opinion about commercial products

L!owe v.

siCh as loudspeakers

s.sc..

472 U.S. 181,210

and marketable securities are protected speech under the First Amendment);

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 764-65

(1976) (society has "a strong interest in the free flow of commercial

information

....

So long as

JeI preserve a predominantly

free enterprise economy, the allocation of our resources in large It is a matter of public

26 27

measure will be made through numerous 'private economic decisions.

interest that those decisions, in the aggregate, be intelligent and well informed.").
I

COOLEY LLP
ATTORNEYS AT

LA'"

1O.
rCE800<, INC. 's MP A I/S/O DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE NO. BC444482

SAN' ~."NC:IS,CO

1 2
I

Under this established precedent, there can be no question but that the speech at issue here is a matter of public concern. When a Facebook User says that he or she likes certain contentUser is communicating to

3 4

\whether it isa brand, a product, a political candidate, or a cause-~hat

his or her friends an affinity for that content, and there can be no dispute that the User's friends

5
6

have an interest in receiving

that communication.

In such a circumstance,

"the free flow of

\commercial information is indispensable."

Virginia State Bd. of Pharmacy, 425 U.S. at 765.

here. As confirmed recently by the Court of

7
8
9

I
kppeal,

That conclusion, '''[p]ublication

in turn, is dispositive

10
11

I know, I I I

of matters in the public interest, which rests on the right to the public to

and the freedom of the press to tell it, cannot ordinarily be actionable."

1181 Cal. App. 4th at 681 (rejecting claim for misappropriation

'

See Rolling Stone,

under section 3344); see also

Shulman, 18 Cal. 4th at 225 (a publisher has "broad discretion to publish matters that are of
.1

12 13 14 15 16 17 18
19

legitimate

public interest");

Branzburg v. Hayes, 408 U.S. 665, 704 (1972) ("Freedom

and periodicals

of the [and]

press is a 'fundamental

personal right' which 'is not confined to newspapers

j ..
I

comprehends

every sort' of publication

which affords a vehicle of information

and opinion").

By re-publishing a User's name or likeness along with an indication that they like content being
advertised on its website, Facebook provides a forum for authentic endorsements genuinely and without pecuniary motive have expressed their approvaL
1

by persons who

This serves a particularly group of

valuable
I
1

interest

inasmuch

as the information
.

is re-published

only to the User's

friends-persons

with whom the User has an established

valuable.

relationship

and for whom a User's information on a topic

20 21 22 23 24 25
','
"
.,(

dpinion may be particularly

that the courts have explicitly

I

Facebook has a right to re-publish is a matter of legitimate falls under section

recognized

interest. 3344(d)'s

On this basis, "newsworthy"

Plaintiffs'
I

cause of action for misappropriation

e1xemption and should be dismissed with prejudice."

"

'I;~
" :1:

.,

26
27

4! Although
I.

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COOLEVLLP
ATTOI.NEY5 SAN AT
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the Complaint focuses on the issue of parental consent under section 3344(a), no consent is required because the section 3344(d) exemption is satisfied. Nevertheless, Facebook does not concede that there was insufficient consent;

11.
No. BC444482

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F ACEBOOK, INC. 's MP A 1/8/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

1 2 3 4
I

2.

This construction of section 3344 is supported constitutional avoidance.

by the doctrine

of

I
i

Where an otherwise valid interpretation

of a statute raises serious constitutional

problems

'and an alternative interpretation re constitutional problem.

is "fairly possible,"

the court must construe the statute to avoid

5 6

See INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (superseded by

~tatute on other-grounds); see also Santa Clara Cnty. Local Transp. Auth. v. Guardino, 11 Cal.
fth 220, 230 (1995) (Court "will not decide constitutional questions where other grounds are i available and dispositive of the issues of the case"). As shown above, Plaintiffs' claim under
I

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8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COOLEyLLP
ATtolHun SA"" FR,Ir, In LA,..
","CISC;O

~ection 3344 raises serious constitutional States Constitution provides

questions

under the First Amendment

to the United

and Article I, Section 2 of the California Constitution. protection for the fundamental right of free speech,

The First Amendment and

Constitution

broad

the California See Blatty v.

New York Times Co., 42 Cal. 3d 1033, 1041 (1986).

right of Facebook

"independently

establishes a zone of protection

that is broader still."

Plaintiffs'

cause of action puts at issue the to re-

Users to express their consumer

opinions and the right of Facebook

JubliSh that information,

I

as a subject in which the public has a legitimate interest. alleged re-publication This

But the Court

can fairly construe section 3344 so that Facebook's

of User "likes" falls avoids the

~ithin
I
I

the

"newsworthy"

exemption

of

section 3344(d).

construction

cbnstitutional
I

concerns that allowing Plaintiffs'

section 3344 claim to proceed raises.

3.

The Complaint fails to allege facts that would support the elements of section 3344. .

Even if section 3344(d) did not preclude the section 3344 cause of action, the Complaint

does not allege the facts necessary to support all elements of a claim under section 3344.
1

a.

The Complaint fails to aIJege any injury.

must adequately allege an injury.

Slivinsky v. Watkins-Johnson Co., 221 Cal. App. 3d 799, 807 (1990). The Complaint makes only
conclusory allegations regarding Plaintiffs' damages" and "non-economic

To state a claim under section 3344, Plaintiffs

See

injuries, stating merely that they sustained "economic as a result of the unauthorized, commercial use of their

damages"

names and likenesses,

(Compl. ~~ 34, 35.) A demurrer does not assume the truth of contentions, 12.

jACEBOOK, INC. 's MPA IfSIO DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE No. BC444482

1 2 3
4

'ldeductions, or conclusions of fact or law. See Daar v. Yellow Cab Co., 67 Cal. 2d 695, 713

\(1967). Instead, the Complaint must make factual allegations of economic or non-economic iinjuries that would support such a legal findin~. Injury under section 3344 may be economic or

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 :';
.<\

non-economic, but some injury is a necessary element of the cause of action. See Downing v.

!Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) (resulting injury is a necessary element lOfc1aimunder section 3344); see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 416

(9th Cir. 1996) (injury may be economic or non-economic), Non-economic damages may include
I

mental distress or injury to reputation, and mental distress may include «'shame, humiliation,
I .

embarrassment, {and] anger.?' See Waits v. Frito-Lay, Inc.• 978 F.2d 1093, 1103 (9th Cir. 1992).
I

The Complaint alleges no facts that would support"a finding of economic or non-economic

injury. The Complaint does not allege when or in which advertisements Plaintiffs' names or likenesses were used, or that Plaintiffs' names or likenesses appeared on any "landing page" JeSulting from an Internet search, Plaintiffs do not allege that they were embarrassed or suffered
I

~hame or anger as a result of the alleged use of their name and likeness, nor do they allege that they normally would have been reimbursed for the use of their names or likenesses.

\
I

Failure to allege injury defeats a section 3344 misappropriation claim. In fact, "[rjesulting

injury is the sine qua non of a cause of action for misappropriation of name." See Slivinsky, 221 Cal. App. 3d at 807 (affirming summary judgment where plaintiff failed to allege how truthful
I

statement resulted in injury).

1

Because Plaintiffs fail to allege that the use of their names or

likenesses on a "landing page" or associated with an advertisement caused them injury. their Complaint should be dismissed for failure to state a claim.
II

b.

I
\

The Complaint fails to allege that Facebook uses names or likenesses for its advantage, commercial or otherwise,

Both the common law and section 3344 distinguish between the use of a name or likeness

for a party's own benefit and an incidental use of that name or likeness. Plaintiffs do not state a claim, therefore, unless they allege facts demonstrating that Facebook uses the names and
I

26 27 28
COOLEyLLP

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>

likenesses for their "advantage, commercially or otherwise."

See Newcombe, 157 F.3d at 692;

'I ~.

"

:1:

cll. Civ. Code § 3344(a). The Ninth Circuit has usefully defined this element as it relates to \ 13.
~ ACEBOOK, INC. 's MPA IlSJO DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAIl\T - CASE No. BC444482
'1

AlTQRN'EY5

A.llAW

SAN FAANCUiCO

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those who publish advertisements.

I

In Newcombe, the Court considered

a misappropriation

claim

2
3 4

against Time Magazine and the Coors brewing company arising from an advertisement the image of a famous baseball player in a Coors advertisement without his consent.

that used

Id at 693.

In analyzing the claim, the court held that because the image was part of the beer advertisement, plaintiff had adequately demonstrated
I

5
6 7

the use was for the advantage of Coors. It held, however,

that use of the likeness "could not be said to have directly benefited Time" because "the benefit \[Time] received-payment ladvertisement."
I

for the advertising

space-was

unrelated

to the contents

of the

8 9 10 11
12 13 14 15 16 17 18 19

Id. In short, Time Magazine received the same benefit, payment for advertising

space, regardless of the ad's content or efficacy. Like Time Magazine, sale of the advertised product. Facebook is not an advertiser, nor does it earn revenues from the

Rather, third parties use Facebook to display their advertisements space. (Compl. ~ 21.) As the Ninth Circuit "commercial or

and Facebook earns revenue by selling advertising

I

held in Newcombe, this sort of financial benefit is not the type of "advantage," lotherwise," that is actionable under section 3344. Nor does the Complaint adequately allege that publication ,'landing pages" is for Facebook's "advantage." The Complaint

of User names or likenesses on does not allege that a User's

name or likeness is associated with any product or that Facebook receives direct revenue from the bUblication of th~ landing pages.
I

Instead, it alleges that when Users permit their name and/or

likeness to be associated
I

with a Facebook "landing page" that informs the searcher the User is a to join Facebook's enabling free service, the publication increases

20
21

6ember
I

and permits

the searcher

Facebook's
I

User population, (CompI.

"thereby ~ 21.)

Facebook incidental,

to demand attenuated

a higher price for the benefit of increased

22
23 24 25

1dvertisement." . 1dvertising
I

This alleged

revenue is not the type of benefit the statute forbids. as contemplated

As in Newcombe, the sale of

advertising space is not an "advantage"

I

by the statute.

c.
I

The Complaint fails to allege that publication pages" is for "the purposes of advertising."

of "landing

The Complaint

summarily

states that the purpose of the "landing page" is "solely to give to join Facebook. 14. (Compl. ~ 20.) Plaintiffs' own

the searcher the opportunity

I

and incentive"

COOLIOYU.P
ATTORN£YS.
SAN

AT LAW

FRANCISCO

FACEBOOK, INC.'S MPA 115/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE NO. BC444482

1 2

allegations, however, demonstrate that the landing pages serve a different and more fundamental purpose: they provide information in response to Internet searches, and do so in a form that (See id (page is designed for "people conducting Google or other

3 . protects Users' privacy. 4 5 6

7

internet search engine searches of names of persons who are Facebook members, so that the search result will not lead tothe Facebook pages" and "[t]he purpose of the landing page is not to reveal the content of a member's page"). Thus, although the Complaint asserts the purpose is "solely" to invite the searcher to join Facebook, the landing page (l) informs the searcher that the User is a Facebook member (if the User has selected privacy settings that would reveal this
-. information on a public Internet search) and (2) protects the User's privacy by limiting the

8
9 10 11

information that may be revealed. Although a demurrer must treat all factual assertions as true. the Court need not accept conclusions of fact or law that are contradicted by the factual assertions
I

12
13

in the Complaint.

Because, as alleged, the "landing pages" primarily provide information and Plaintiffs have not adequately alleged that the landing pages are

protect

privacy,

14 15 16 17 18 19 20 21 22 23 24 25 26
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Coou" LLP
A1TORNEVS.h
SAN FIl:ANCISCO
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"advertisements"-anecessary

element under section 3344. See Newcombe, 157 F.3d at 692.

c.

Plaintiffs Fail to State a Claim for Violation of the California Constitutional Right to Privacy.

To state a claim for violation of the California constitutio?al right to privacy, Plaintiffs must allege facts sufficient to establish: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious See Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal. 4th 1, 66 (1994).

. invasion of privacy,"

Plaintiffs allege that Facebook's conduct "constitutes a violation" of the California Constitutional right to privacy (Cornpl, ~ 41), but fail to allege even the bare elements of the claim, much less facts in support of their erroneous legal.conclusion, See Evans v. City of Berkeley, 38 Cal. 4th 1,

6 (2006) (courts "treat the demurrer as admitting all material. facts properly pleaded, but not contentions, deductions or conclusions of fact or law").
1.

Plaintiffs fail to allege a legally protected privacy interest.

Plaintiffs fail even to mention a legally protected privacy interest, much less allege facts in support of one. Plaintiffs do not allege that they posted any private personal information to 15.
F ACEBOOK, INC.'s MPA US/O
DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE NO.

28
LAW

BC444482

I I Facebook
I

at all.

In fact, they imply only that they posted, their names, and perhaps their

2
3 4 5 6 7 8 9 10

: likenesses, to Facebook. (See Compl. ~~ 5-6; supra n.2.) But even if Plaintiffs 'had adequately
i

;alleged the posting of their names and likenesses. they have no legally protected privacy interest in such information. California courts have held that no privacy interest exists in one's name and likeness. See Vo v. City of Garden Grove, 115 Cal. App. 4th 425, 448 (2004) (no legally

protected privacy right in customers' physical features); Moreno v. Hanford Sentinel, Inc., 172
I

I Cal. App.

4th 1125, 1130 (2009) ("[Plaintiffs] last name was not a private fact"); see also Hill v.

!National Collegiate Athletic Assn., 7 Cal. 4th 1,40 (1994) (whether a legally protected privacy Ijinterestexists is "a question of law, to be decided by the court."). Accordingly, Plaintiffs have failed to allege facts demonstrating a legally protected privacy interest.
I

11 12
13 14 15 16 17

2.

Plaintiffs fail to allege a reasonable circumstances.

expectation

of privacy in the

I I
1

Plaintiffs have also not alleged and cannot allege that they had a reasonable expectation of The Complaint suggests that Facebook improperly disclosed Plaintiffs' names and in which no reasonable expectation of privacy exists. See Hill, 7 Cal. 4th at 37

privacy.

likenesses-items

C'A 'reasonable' expectation of privacy is an objective entitlement founded on broadly based and

"

lid~IY accepted conununity norms"); People v. Herrera, 124 Cal. App. 3d 386, 389 (1981) ("Information contained on a driver's license does not give such rise to a person's reasonable ~xpectation of privacy").

18
19 20 21

information. Plaintiffs never claim-nor

I

Further, Plaintiffs fail to allege disclosure of any non-public could they claim-that their names and likenesses were

Aot already in the public domain, and "[a] matter that is already public or that has previously become part of the public domain is not private."
I

22
23 24 25 ::
',',

Moreno, 172 Cal. App. 4th at 1130 (2009)

(citation omitted).

Certainly, Plaintiffs had no reasonable expectation of privacy in the information after

26 27

JOluntarily sharing it on to a social networking website-s-a website used "to share information I Jrith others." (ld. ~ 15.) Indeed, as the Court of Appeal recently noted, the affirmative act of
I

":

"

posting information to a "hugely popular Internet site" renders the posted information not private.
I

See Moreno, 172 Cal. App. 4th at 1130 ("Under these circumstances, no reasonable person would
COOLEYLLP
ATTORNIi.Y§. AT LA.W

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16.

SAN Fu

NCI5CO

IFACEBOOK. INC. 's MPA 118/0 DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE NO. BC444482

,
,

1 2

\ have had an expectation

of privacy regarding the published material'.'}. Users voluntarily

provide The

I their names when creating a Facebook profile and may elect to upload a profile picture.
\ "like" information that Plaintiffs claim was re-published to their Facebook

3
4

friends already had

I been

posted by them to that exact same group. (Compl. ~ 22.) Further, Plaintiffs admit that Users via privacy settings, whether their name and likeness will be publicly displayed on

5
6 7

I select, Icause

"landing pages" when someone performs an internet search. of action fails

(Id. ~ 26.) Accordingly,

Plaintiffs'

as a matter of law. See Hill, 7 Cal. 4th at 40.

Plaintiffs fail to allege conduct by Facebook tbat constitutes a serious invasion of a privacy interest.
violation

8
9 10 11 12 13 14
I

3.

Plaintiffs allege generally that "[a]s a direct and legal result of the Constitutional herein alleged. plaintiffs damagea ....
I

and the Plaintiffs 42.)

Class have sustained invasions

economic

and non-economic

"

(Compl.v[

But "[ajctionable

of privacy must be sufficiently breach of

~erious in their nature, scope, and actual or potential impact to constitute an egregious
I

the social norms underlying kllege that disclosure

I.

the privacy right"

Hill, 7 Cal. 4th at 37. Plaintiffs have cannot

they chose to share on a social networking
5

15
16 17 18 19 20 21 22

of the names and likenesses

website is an egregious breach of social norms, much less a serious invasion of privacy. I .

D.

Plaintiffs Fail to State a Claim for Violation of California Professions Code Section 17200.

Business and

: For several reasons, Plaintiffs' purported claim under California's I Law ("VCL") fails to state a claim upon which relief can be granted.

Unfair Competition

I I

First, Plaintiffs lack standing to sue under the VCL because they have not alleged, and

cannot allege that they "suffered injury in fact and ha[ve] lost money or property as a result of sluch unfair competition." 23 24 25
"~I

Rights v. Mervyn's, LLC, 39 Cal. 4th 223, 227 (2006); Animal Legal Defense Fund v. Mendes,

Cal. Bus. & Prof. Code

§ 17204; see also Californians for Disability

I
Plaintiffs' failure to allege any invasion of privacy is confirmed by their failure to allege anything more than general "economic and non-economic damages" from such an invasion. (See Cornpl. '42.) Nowhere do Plaintiffs specify what type of "non-economic" harm they allegedly suffered, or how that harm occurred. (See id. 135 (alleging "non-economic damages as a result of the unauthorized, commercial use of their names and likenesses").) As for Plaintiffs' alleged economic damages, they allege a speculative "loss of advertising revenue," but no harm from any alleged invasion of privacy, (See id. ~ 34.)
5\

:,1

26 27 28
COOl.E'<LLP ATlou:ns A.T
LAW SAN f',U.:NCISCO

I
IJS/O DEMURRER

17.
TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

FACEBOOK, INC.'S MPA

NO. BC444482·

"

160 Cal. App. 4th 136, 145, 148 (2008). 2

I

Plaintiffs'

prayer for "economic

damages for loss of

advertising

revenue" in their claim for violation to satisfy this element. Plaintiffs

of Civil Code section 3344 (CompI. ~ 34) is do not allege how they purportedly "lost" this

3 4 5 6 7

I insufficient I alleged
I
I

revenue, nor do they allege that they paid or otherwise tendered money to Facebook-an

iallegation they could not legitimately make, given that Facebook is free. Plaintiffs cannot allege
I

'that they would have received advertising

I

revenue based on their names and likenesses

but for

'any action by Facebook.6

land speculative-allegations

Plaintiffs thus cannot allege anything other than the most ill-defined that are insufficient to support a section 17200 claim. proposition

8
9

See Troyk v.
adding the

~armers Group, Inc., 171 Cal. App. 4th 1305 (2009) (the California

. 10
11 12

I
I

i'injury in fact" requirement Constitution,

I I .

referred specifically to the standing requirements or imminent, not 'conjectural'

of the United States injury)

which include "actual

or "hypothetical"

. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992»).

13
14 15 16 17 18 19 20 21 22 23 24 25 26
"I_
"

\
!

Second, Plaintiffs

have not sufficiently

alleged

that Facebook

acted "unlawfully"

in

contravention

of the VCL. Plaintiffs purport to allege Facebook violated Civil Code section 3344

Jnd article I, section I of the California Constitution. However, as shown above, Plaintiffs have I failed to allege facts sufficient to state either of those claims, and thus Plaintiffs' claim under the
I

'iunlawful"
I

prong of_section 17200 necessarily

fails as well.

See Whiteside v. Tenet Healthcare

Corp., 101 CaL App. 4th 693, 706 (2001) ("unlawful"

c'laim based on underlying statute).
I

claim under VCL fails where there is no

i
I
I I

Third, Plaintiffs have not alleged facts showing that Facebook acted "fraudulently"
Although Plaintiffs allege broadly' that Facebook's

within

the meaning of the VCL.

acts constitute (Compl. do they

~i45),
I

"Unfair competition

by means of unlawful and/or fraudulent

business acts or practices" in their Complaint-nor

they allege no misrepresentation

by Facebook anywhere

"

27 28
COOLEVLLP
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information has no compensable value. See (lEG), 2007 WL 2746603, at *3 (S.D. Cal. Sept. 18, 2007) (rejecting argument that personal information could constitute property under the VeL, citing cases for proposition that personal information has no intrinsic or economic value); JetBlue Airways Corp. Privacy Litigation, 379 F. Supp. 2d 299, 327 (E.D.N.Y. 2005) (there "is no support for the proposition that an individual['s] ... personal information has or had any c4mpensable value in the economy at large"). . 6 :Other courts have concluded

Thompson v. Home Depot, Inc., No. 07-cv-I058

that personal

AT

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18.

FiRA.NCI5CO

FACEBOOK, INC. 's MPA I/S/O DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE No. BC444482

'.

.
1 even allude to any fraudulent or deceptive act by Facebook. What they do allege is that Facebook "encourage[d] children to join the Facebook social networkingsite to engage in communication

2 3 4 5
6

I and

exchanges with their friends as an authentic experience, while . . . using their names and (Id.) But

\likenesses for coinmercial and marketing purposes without their parents' consent."

Ithere is no alleged connection between the alleged statements of encouragement and any claimed use of the Plaintiffs' names and likenesses. Plaintiffs never allege, and cannot allege, that

7
8 9

iFacebook misrepresents a User's "likes," because that information is only posted to Facebook
I

'after a User voluntarily communicates that he or she likes something (whether a person, place,
I

10
11

I I I

idea, or product) found on Facebook.7 Fourth, Plaintiffs have not alleged facts showing that Facebook acted "unfairly" within

~hemeaning of the UeL. Plaintiffs state baldly that Facebook's actions are "unfair" to consumers

12
13

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I

(Compl. ~ 45), and seem to imply that this unfairness flows from Facebook's reputation as a kocial network in which users "engage in communication and exchanges with their friends as an Lthentic experience." But they do not allege how Facebook's landing pages or its re-publication

14
15

bf

social news (e.g., that a Fac~book user likes something) renders Facebook Users' social experience-including the communications Facebook Users share with one another-

16 17
18

ttworking

Jomehow inauthentic.

Plaintiffs' vague allegations that Facebook's actions are "unfair" are

insufficient to state a claim under section 17200. \ California courts have held that in order to state a claim for an "unfair" business practice

19 20 21 22 23 24 25 26 27 28
COOlEYLLP
ATTORN[VS AT LAW

ih the context of a UCL consumer action.' a plaintiff must allege facts sufficient to establish: (1) substantial consumer injury; (2) that the injury is not outweighed by countervailing benefits to
I

I
7 Nor have Plaintiffs alleged the required element of reliance. See In re Tobacco II Cases, 46 Cal. 1 4th 298, 326 (2009) ("[R]eliance is proved by showing that the defendant's misrepresentation or nondisclosure was 'an immediate cause' of the plaintiffs injury-producing conduct. A plaintiff may establish that the defendant's misrepresentation is an 'immediate cause' of the plaintiffs conduct by showing that in its absence the plaintiff <inall reasonable probability' would not have engaged in the injury-producing conduct" (internal quotation marks and citations omitted)).

Cel-Tech Commc 'ns., Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 185 (1999), the California Supreme Court reviewed definitions of "unfair" that had been developed by the lower courts and concluded they were "too amorphous and provide [d] too little guidance to courts and businesses." The Court adopted a test for competitor actions, but did not decide what test should apply in consumer actions. Id. at 186-87.
I

8:In

i
FACEBOOK, INC. 's MPA

19.
IIS/O
DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT - CASE

S"N

F'KA.Ncl~(o

No. BC444482

.,

1-\.,
I

.,

1 \ consumers; and (3) that the injury is one that consumers could not reasonably have avoided.
2 3 4 \ Camacho v. Auto. Club olS Cal., 142 CaL App. 4th 1394, 1403 (2006) (referring to factors under \ section 5 ofPederal Trade Commission Act, codified at 15 U.S.C. § 45(n»; accord Davis v. Ford

I Motor Credit Co. LLC, 179 Cal. App. 4th 581, 596 (2009).9 Here, as discussed above, Plaintiffs
lhave not pled any injury, let alone "substantial" injury. Nor have they suggested that any such injury is "not outweighed by countervailing benefits to consumers." On the contrary, they [acknowledge the benefit to consumers, admitting that "[0]ne of the primary reasons people use
I

5
6 7 8 9 10 11 12 13 14

'Facebook is to share information with others" (Compl. ~ 15), information that includes the fact

Ithat particular
I I

Facebook Users like certain things or that the User is a Pacebook member.

[Iherefore, Plaintiffs' claim under the "unfair" prong of section 17200 should be dismissed.

Finally, Plaintiffs cannot assert a claim for monetary relief. Under the UeL, monetary
}elief is limited to restitution, see Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134,
I

r
\

1148 (2003), and Plaintiffs do not and cannot allege they paid money to Facebook. CONCLUSION Por the foregoing reasons, Facebook respectfully requests that the Court sustain its

15
16 17 18 19 20 21 22 23 24

Demurrer with prejudice.

\

Bated: December 16, 2010

I
\

COOLEYLLP

~D~/MJ,D/

Matthew D. Brown

Attorneys for Defendant F ACEBOOK, Inc.

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A TTORNEy:; AT LAW SA. N FRAN CISCO

~fter Cel-Tech, courts have used two other tests. Drum v. San Fernando Valley Bar Ass'n, 182 CaL App. 4th 247,256 (2010). One requires that the public policy allegedly violated be "tethered td specific constitutional, statutory, or regulatory provisions." The other, essentially a pre-CelTech test, requires that the business practice be "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers" and that the court "weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim." Id. at 256-57. Plaintiffs fail to allege unfairness under either test, as they allege neither a "specific constitutional, statutory, or regulatory provision" nor harm substantial enough to outweigh the utility of Facebook's services.
9

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\

20.
CASE

FACEBOOK, INC.'S MPA I/S/O DEMURRER TO PLAINTIFFS' CLASS ACTION COMPLAINT.

No. BC444482