EAST ST. LOUIS, Ill. (CN) – Citing the “conspicuousness” of its terms of service on facebook.com, a federal judge granted Facebook’s request to transfer a class action to the Northern District of California.
Parents of two teen-agers filed the class action against the social network in June 2011, claiming Facebook misappropriated the teen-agers’ names and likenesses for commercial purposes without consent.
The parents claimed Facebook improperly advertised what the teens “liked,” and cited Illinois law that prohibits children from giving Facebook permission to use their names and pictures in advertisements.
Facebook asked to transfer the case to California, where Facebook is headquartered, and cited a clause in its terms of service that states that all litigation is to be settled in the Northern District of California.
The parents’ attorneys argued that moving the case to California would inconvenience their clients and needlessly increase the cost of litigation.
But U.S. District Judge Patrick Murphy ruled for Facebook.
“In this instance, as noted, persons wishing to join facebook.com must attest that they have read Facebook’s TOS [terms of service], which are made available through a hyperlink,” Murphy wrote. “Also, Facebook’s TOS are hyperlinked on every page accessed by a facebook.com user in underlined, blue text that contrasts with the white background of the hyperlink. Accordingly, the court concludes that plaintiffs were reasonably put on notice of Facebook’s TOS. … Whether or not plaintiffs actually read Facebook’s TOS is irrelevant, of course, to the matter of the conspicuousness of the TOS and thus plaintiffs’ constructive knowledge of the TOS, and plaintiffs are bound by Facebook’s TOS whether plaintiffs read them or not.”