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Monday, September 27, 2021

Column: Watts legal?

Question: Facebook sent me an email last week saying I’m entitled to $10 because they might have used my pictures in a “sponsored story” without my permission. Was that for real, or is it spam?

Answer: It’s not spam. When you “like” something on Facebook — whether a business, band or movie — the fact that you “liked” it could appear in your friends’ news feeds. That’s why you always see those sponsored stories telling you that your roommate likes Chipotle (not a surprise) or your mother likes The Hangover (weird).

These companies pay Facebook to display the stories. Facebook profits, and so do the companies, if the advertisements are successful. Market research suggests peer pressure is a powerful way to change consumers’ buying habits. In these ads, you are the the celebrity endorser.

But think about the ads you see on TV. Brad Pitt doesn’t make those lame fragrance commercials for free, and Nike had to pay Tiger Woods to stare forlornly into the camera.

Did Facebook or Chipotle pay you for your “celebrity” endorsement? No. And in some states, that wouldn’t be a problem.

Not in California.

California law protects your right of publicity, under both the common law and codified state law: California Civil Code section 3344.

(“Common law” is the magical traditional law handed down to us from our legal forebears in England. It’s still binding law in California unless the legislature says otherwise.)

The right of publicity means companies can’t use your name, voice, signature, photo or likeness to sell products without your consent. If they do, you can sue them for at least $750 in automatic damages.

That’s what a group of people did in Fraley v. Facebook, Inc., a class action lawsuit filed in 2011. They sued Facebook for themselves, and on behalf of all similar people — the “class” — whose photos were used in ads.

You are probably part of this class. But you don’t have to be.

Just like I wished the pepper spray protesters would opt out of the class action settlement, I hope the members of the Facebook class will opt out. While each of the people who filed the lawsuit will get $12,500 in the settlement, everyone else will get $10 — if there’s enough money left over.

One more time: They’re trying to pay you $10 to settle a case that should be worth at least $750, while paying the three original plaintiffs $12,500 each. The lawyers will get $7.5 million. Even more damning: in Facebook’s original settlement offer, which the court rejected, Facebook offered no money at all to the individual victims.

To opt out of the settlement and preserve your right to sue Facebook for more than $10, go to fraleyfacebooksettlement.com/opt and fill out the online form.

Maybe you don’t want to sue Facebook, but you think the $10 settlement is weak sauce. In that case, you might want to object to the settlement. You have to write a letter that meets certain requirements, which you can find here: docs.fraleyfacebooksettlement.com/docs/notice.pdf

Q: It costs 50 cents to use a credit card at the coffee shop near my house. Arco charges 50 cents to use a debit card, but refuses to take credit cards. Mishka’s says they’re offering a “cash discount” that disappears when I use a credit card. Are these things legal?
— Anonymous.

A: Some of them.

There was a proposal to ban debit card fees a few years ago. Arco’s trade union mobilized to defeat it in the legislature, so it never happened.

Credit cards are different.

Merchants can’t charge a fee when you use a credit card — it violates California Civil Code section 1748.1. If they charge you a fee to use a credit card, keep your receipt. Then write them a letter — using certified mail — and demand a refund of the fee. Include a copy of the receipt in your letter. If they don’t give you a refund within a few weeks, you can sue them for a triple refund plus attorney fees.

Merchants can offer a discount to customers paying with cash. Not many merchants set this up correctly, though.

Mishka’s, for example, lists its regular prices on a large signboard behind the counter. Nearby is a small sign stating “these prices reflect a 50-cent cash discount” or something to that effect. That’s really not a “discount” as most people use the term. Those are the regular posted prices, which happen to increase by a couple quarters if you use a credit card. Sounds like a fee to me.

There are very few published court opinions on this topic because the potential payout is only a couple bucks. The dearth of controlling cases makes it difficult to say with certainty whether the sneaky Mishka’s sign is legal. So don’t go suing Mishka’s.

Daniel is a Sacramento attorney, former Davis City Council candidate, and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.

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