Facebook ‘Happy Birthday’ lawsuit rolls on

Could be costly for Zuck. But who really cooks the Spam?

Woman looks bored wearing birthday hat. Photo by Shutterstock

Facebook has failed to dismiss moves to file a class action lawsuit over its practice of sending "unsolicited" text messages when your friend has a birthday.

Plaintiff Colin R. Brickman alleges that this violates telemarketing laws in the Telephone Consumer Protection Act. The law was originally intended to give protection against unsolicited calls, but unwary companies have been clobbered for sending unwanted commercial text messages.

The law allows recipients to file civil lawsuits which, if successful, award the class member between $500 and $1,500 per violation. It’s become a fertile ground for claims – and some law firms specialise in defending texters against claims. Most famously, class members in a suit against publisher Simon and Schuster were awarded $90m for spam SMS promoting a Stephen King novel. So it can be costly.

The case requires the plaintiff, Colin Brickman, to show that an “autodialler”, or a functional equivalent, was used to send the "spam" SMS. Some courts have rejected the argument that SMS platforms used by marketers (and Facebook) qualify as autodiallers under the TCPA, while others, significantly the Ninth Circuit, have agreed that they are... at least when it comes to unsolicited commercial messages.

Facebook argues that because Brickman signed up to Facebook and the recipient “publicly shared” their phone number, and the two friended each other, the SMS involved “human intervention”. Facebook also maintains Brickman and his friend consented to the text message.

Judge Thelton Henderson rejected this, and also thought the theory that Facebook used an equivalent of an autodialler should at least be advanced. ®


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