Ninth Circuit Court Allows Class Action Lawsuit Against Facebook to Proceed

The US Ninth Circuit Court of Appeals has cleared the way for a class action lawsuit against Facebook, ruling that “Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011,” are indeed a certified class entitled to legal representation. The ruling reaffirms the initial decision of Northern California District Court Judge James Donato, who first certified the class in April of 2018.

The lawsuit was later delayed when the Ninth Circuit agreed to review Donato’s decision. Now that the Ninth Circuit has backed that earlier ruling, the case can move to trial and it is increasingly unlikely that Facebook will be able to get it dismissed before it reaches that point.

The lawsuit itself was filed in Illinois in 2015, and alleges that Facebook unlawfully collected the facial information of users without sufficient consent, primarily through the “tag suggestions” feature for uploaded photos. The plaintiffs argue that that represents a violation of the Biometrics Information Privacy Act (BIPA) in Illinois, which established a right to privacy and gave citizens more control over their biometric data.

The case was later moved to Facebook’s home state of California, although Judge Donato rejected Facebook’s request to have the case dismissed, allowing it to proceed with respect to the Illinois law.

On that note, the Ninth Circuit also ruled that Facebook’s violation of BIPA would constitute legal “injury-in-fact,” which is noteworthy because it means that the plaintiffs do not have to demonstrate that Facebook’s actions led to any additional harm in order to win their case. It instead marks the privacy invasion itself as a form of substantial harm that can be adjudicated in court. That could set a crucial precedent for the future, especially when coupled with a similar Illinois ruling that was cited in the Ninth Circuit’s decision.

The plaintiffs in the Facebook case are represented by three separate law firms, which include Edelson PC, Robbins Geller Rudman & Dowd LLP, and Labaton Sucharow LLP.

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August 9, 2019 – by Eric Weiss