Can I Sue Facebook? A Fictional Scenario
The prospective client walks in and sits down and asks the lawyer: “Can I sue Facebook?”
The lawyer asks, “What did Facebook do?”
The prospective client says. “Facebook terminated my account, which might have been because I was associated with an anti-BP group that also got terminated. When I tried to get it turned back on, they said it was because I had ‘targeted people because of their physical characteristics,’ which is bizarre, since I have never done that.”
The lawyer says, “Hmmm…” wishing she were changing a diaper or doing something else rewarding and enriching.
Then the prospective client says, “Look, I have these five pieces of green paper here that each bear a remarkable likeness of Andrew Jackson on them, with the number ’20’ printed in three corners on the front side, and a nice engraving of the White House on the other side, and if I just put them on your desk here, would you tell me if you think I have a case? Don’t do any research, just answer the question to the best of your ability, please.”
While not ordinarily given to venal impulses, the lawyer thinks that this question can be answered in fifteen minutes, which pencils out to the same as her hourly rate, so she scoops up the Federal Reserve Notes thus placed on offer, and says, “For that amount, you are entitled to a written opinion, with the caveat that it is made without research. To research it, I need another twenty of those nice little pictures of Andrew Jackson, or four pictures of Ben Franklin.”
The person, who has now become a client, responds, “Let’s just stick with what we can get for five Old Hickories.”
The lawyer turns to her desktop keyboard and begins to write.
The lawyer turns to her desktop keyboard and begins to write. A half-hour later, after noting that she has once again underbid a job by fifty percent, she spellchecks and prints this legal opinion.
September 26, 2010
From: Lemmie Adam
To: Ivan Justice
Re: Can You Sue Facebook?
What Rights Are You Trying To Enforce?
You want to sue Facebook. Assuming that you have any rights at all against Facebook, the rights that you would like to enforce can be described as:
- The right not to have your speech rights terminated because you expressed views that Facebook wanted to suppress.
- The right to not lose control over photographs.
- The right to notice before you’re deprived of access to your photographs.
- The right not to be accused of obscure rules violations like targeting people for their physical characteristics.
Would A Court Enforce Any of These Rights?
Enforceable rights in this situation might arise from four sources:
- The Bill of Rights
- Statutory / Regulatory Law
- Case Law / Common Law
The First Amendment Will Not Help You
Let’s start with the Bill of Rights. The First Amendment forbids the government from engaging in censorship, but private parties like Facebook are under no such restriction. So the Bill of Rights isn’t going to help you here.
You Do Not Have An Enforceable Contract for Continued Accounts Access or Preservation of Photographs
Since most relationships between private parties in commerce are regulated by contract, next I’ll consider this: “Did you have a contract that obligated Facebook not to terminate your account without notice?” A contract is a legally enforceable obligation arising from the voluntary assumption of corresponding duties by two or more parties supported by “consideration.” Consideration is something of value, i.e., money. It’s clear you paid no money to Facebook; therefore, you very likely have no enforceable rights at all with Facebook.
But let’s just see what the Facebook Terms of Service say.
The Terms of Service don’t promise anywhere that you will have continued access to your Facebook account. So Facebook had no duty to keep your account open, and you have no contractual claim against them for shutting it down.
Additionally, it provides for termination for violating the “spirit” of the Terms of Service, which might allow them to terminate you for saying things that would cause them to be sued:
“If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account.”
So if your activities, such as political speech, caused risk of liability to Facebook, they would have the right to terminate your account.
In summary, I see no breach of contract remedy for you.
You May Have A California False Advertising Claim
Let’s look at statutory remedies under California law, which is what would apply to Facebook, based on its “choice of law” provision in the Terms of Service (quoted below). California False Advertising law under California Business & Practices Code Section 17500 provides that it is unlawful for anyone to negligently or knowingly make an “untrue or misleading statement” to “induce the public to enter into any obligation” to “perform services.” Generally, a statement can give rise to liability if “it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably under the circumstances, could be misled.”
The Terms of Service incorporate the Facebook Principles that suggest you should be able to keep your photographs even if your account is terminated:
“People should own their information. They should have the freedom to share it with anyone they want and take it with them anywhere they want, including removing it from the Facebook Service.”
It is therefore just possible that this statement could be interpreted as a promise to provide you with the means to recover your photographs, even if Facebook shuts your account down. The question of course would be whether this was an inducement intended to get you to enter into “any obligation,” to acquire Facebook services, since you didn’t pay to join the website.
Assuming that large numbers of people have permanently lost photographs or other content, this could conceivably warrant a class action. However, there are many slips between the cup and the lip, and without very dedicated attorneys ready to put hundreds of hours into the litigation, and with substantial resources to satisfy the complex requirements of class action practice, the case would likely be a waste of time for all concerned.
You Would Have To Sue In Santa Clara County, California
The Terms of Service have a “choice of law” and “choice of forum” clause that states:
You will resolve any claim, cause of action or dispute (“claim”) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.
This provision will very likely be enforced. Lawyers in Santa Clara County, California who could handle this type of case are very rare, so be prepared to be disappointed in your search for local unless you can peel off a mighty big stack of Dead Presidents or have extraordinary luck.
You May Have A Conversion or Trespass To Chattels Claim
If photographs are deemed to be “chattels,” i.e., items of personal property, and Facebook is deemed to have accepted the duty to care for the photographs, you could have a claim for conversion or trespass to chattels for the permanent or temporary deprivation of possession. What would such a claim be worth? You have probably suffered primarily sentimental loss due to photographs of personal importance. You might have some argument under the famous California case of Windeler v. Sheers, 8 Cal.App. 844 (1970) that, by agreeing to store photographs of sentimental value, Facebook exposed itself to liability for the emotional injuries arising from their loss. If Facebook were able to restore access to the photographs, of course, you would not have a conversion claim, but rather a trespass to chattels claim, i.e, a temporary deprivation of possession of personal property.
Facebook Has A Liability Limitation
Facebook has quite likely limited its liability to a maximum of $100:
WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR FACEBOOK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR FACEBOOK WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.
You may have a statutory claim against Facebook for false advertising, or a common law claim for conversion or trespass to chattels. These claims would be of nominal value, possible presenting a situation of “no damages,” which would defeat the claims altogether. If a substantial number of other persons have been similarly deprived of access to their photos, a class action is conceivable; however the costs of pursuing such a claim would require well-heeled, dedicated consumer activist-type lawyers to pursue them. The claims would have to be filed in Santa Clara County Superior Court, as they are not likely to meet the stringent standards for a Federal class action for a number of reasons too complex to explain in this brief memorandum.