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Advocacy group files appeal against Facebook privacy settlement

Some parents of Facebook users are attacking a class action legal decision, arguing that minors should have explicit parental consent for their images being used in ads.

James Martin/CNET
In August, Facebook settled a highly publicized class action lawsuit that took issue with the social network's use of people's names and photos in advertisements.

A lot has happened since the suit was first filed in 2011: The company paid $20 million, and the ad units in question, Sponsored Stories, will be retired. But the practice of having users appear in ads because they "liked" or commented on a piece of content -- the act that was so controversial -- is still in place at Facebook.

And some critics still have issue with a specific point of the case: the use of children's images without parental consent.

On Thursday, nonprofit advocacy group Public Citizen filed a legal brief with the Ninth Circuit Court of Appeals of San Francisco, asking that the settlement be overturned. As part of the original settlement, Facebook was told to change the language of its terms of service to say that, for people under 18, the act of signing up for Facebook represents parental consent. But that solution, the critics said, doesn't require those parents to give explicit consent.

"Putting the burden on kids and parents to opt out...gets it backwards," Scott Michelman, an attorney at Public Citizen, said during a telephone press conference Thursday protesting the settlement. Facebook did not respond to a request for comment. We'll update this post if we hear back.

The brief was filed by Public Citizen on behalf of five parents and their kids on Facebook. The group contends that the original settlement violates the laws of seven states including California and New York.

One of the parents appealing the settlement, Margaret Becker of Brooklyn, N.Y., said the most troubling thing is that kids largely don't know the implications of their actions when their online activity is used in advertising. "It really distorts the act of 'liking,' as a child might perceive it," she said. "Kids joke. And when you take it out of context and blast it, it can distort what the child's intent was." Becker became concerned when her 15-year-old daughter appeared in an ad for a band she "liked" without consent.

The ideal fix, Michelman said, would be for users under 18 years old to be automatically excluded from appearing in ads, or having them opt in. For its part, Google, which announced a similar practice with users' images on Google Plus, has opted out everyone under 18 from the program, advocates said.

To protest the decision, the Campaign for a Commercial-Free Childhood, a nonprofit based in Boston, rejected a sum of $290,000 that the group was supposed to receive as a part of the settlement. That amount equals about 90 percent of the group's annual operating budget, said director Susan Linn. She said she thought the decision would actually prevent future efforts to protect minors. "We now believe this settlement is worse than no settlement," she said.