Facebook Aruges BIPA Instagram Suit Belongs in Arbitration

Last Thursday, Facebook, Inc. filed a motion to compel arbitration in a consolidated suit lodged by consumers for violations of the Illinois Biometric Information Privacy Act (BIPA). The initial complaint, filed on Aug. 10, 2020, claimed that Facebook illegally collected users’ personally identifying biometric information, and in particular their facial geometry, after they used Instagram, a Facebook-owned social media application, to upload and share photographs. 

In January, the consumers filed a consolidated complaint, which Facebook responded to with the instant motion. The social media platform asserted that the three plaintiffs “have filed their claims in the wrong forum.”

When they signed up for Instagram, Facebook argues, the plaintiffs agreed to arbitrate disputes related to the Instagram service. Facebook contended that the plaintiffs assented to Instagram’s Terms of Use at least once, either initially or through subsequent updates that were emailed to users, “through an affirmative click of a button and through continued use of Instagram.” 

Further, each time Instagram’s Terms of Use were updated, users were given an opportunity to opt out of the arbitration clause, but allegedly, none of the three plaintiffs did so. Accordingly, Facebook asserted that pursuant to the Federal Arbitration Act, the complainants should be compelled to arbitrate their claims and the case should be stayed.

As to one of the plaintiffs, a minor female, Facebook argued that applicable law does not allow her to avoid arbitration on the basis of her age. The defendant points to precedent standing for the California law principle that a minor may not “‘accept the benefits of a contract and then seek to void it in an attempt to escape the consequences of a clause that do[es] not suit [her].’”

Finally, according to Facebook, the plaintiffs are not only incorrect about where they must adjudicate their claims, their core contention, that Facebook uses facial recognition to identify people in content uploaded to Instagram is “meritless.” The plaintiffs are represented by Carlson Lynch LLP, Whitfield Bryson LLP, and Greg Coleman Law PC and Facebook by Mayer Brown LLP and Cooley LLP.