Facebook in the United States
February 8th, 2017
By: A. McLeod
In January 2017, a federal judge for the Northern District of California denied Facebook’s motion to dismiss in a class action where it was accused of violating the Telephone Consumer Protection Act (“TCPA”) for sending unsolicited texts to users on their friends’ birthdays. In December 2015, Colin Brickman received a text from Facebook informing him that it was his friend’s birthday and for him to wish his friend a “Happy Birthday!” by replying to the text. Brickman, however, had indicated in his profile settings that he “did not want to receive any text messages from Facebook, and also did not activate text messaging for his cell phone.”
The court rejected Facebook’s challenge of the constitutionality of the TCPA under the First Amendment as applied as well as on its face. It held the TCPA, which prohibits unsolicited calls or texts messages by automated telephone dialing systems without consumer consent, survived strict scrutiny in that it serves a compelling government interest and is narrowly tailored.[1]
Facebook and the European Commission
Internationally, Facebook and other companies also face challenges relating to electronic communications to consumers. In January, the European Commission published a proposal, looking to update the scope of the e-privacy directive. Part of the proposal would ban unsolicited electronic communications, including email, SMS and phone calls without the users’ consent.
The Commission cited 92% of Europeans expressed the importance that their electronic communications of emails and online messages remain confidential. However, the current e-privacy directive only applies to traditional telecoms operators. The press release describing the proposal specifically outlined the new rules would apply to “electronic communications services, such as WhatsApp, Facebook Messenger, Skype, Gmail, iMessage, or Viber.”
Failure to operate in accordance with the new regulations can result in fines of up to “four per cent of their global turnover,” reports Wired.
The proposal will be before European Parliament and the Council of the EU for adoption, with the intention of approval by May 25, 2018, when the General Data Protection Regulation is active.
[1] https://www.bna.com/facebooks-first-amendment-n57982083283/.