Statement of Scott Michelman, Staff Attorney, Public Citizen
Contact: Scott Michelman (202) 588-7739; Sam Jewler (202) 588-7779
We applaud the introduction today by U.S. Rep. John Duncan of Tennessee of a bill to ban the use of children’s images in advertising on online social networks. The use of minors’ images is a troubling practice that has been occurring for years and is the subject of several lawsuits, including one against Facebook pending in federal court in California. In that case, Fraley v. Facebook, Public Citizen has urged the court to reject a proposed settlement that permits Facebook to continue using children’s images in ads without parental consent.
The legislation proposed today would ban the exploitation of children’s images in this way. Seven states, including Tennessee, already prohibit the use of minors’ likenesses for advertising without parental consent. Rep. Duncan’s bill would extend such protection nationwide.
Although the proposed bill is a step in the right direction, it should be revised in two respects to ensure that state-level protections for minors are not jeopardized.
First, the bill specifies that it does not pre-empt stronger state protections. This provision may have the unintended consequence of suggesting that state laws that provide different or less strong protections are pre-empted. Congress should clarify that no state law is pre-empted except where compliance with both state and federal law is impossible. This change would ensure that existing state protections, including state rights of action, are not displaced by the new legislation.
Second, Congress should allow parents whose children’s images are used unlawfully to bring lawsuits to obtain damages, statutory penalties and orders requiring that the offending images be taken down. Such lawsuits would add a critical deterrent to and remedy for the exploitation of children’s images.