Specifically, the plaintiffs, two women and a minor suing through her mother, argued that Facebook violated BIPA by improperly using facial recognition technology on photographs of them that were uploaded to Instagram, so that Facebook could identify them in subsequent images. According to Facebook’s motion to compel arbitration, “[t]his claim is meritless: Facebook does not use face recognition to identify people in content uploaded to Instagram.”
Instead of moving to dismiss or answering the substantive allegations, Instagram’s parent company moved to compel arbitration, arguing that the plaintiffs simply brought their grievances in the wrong forum.
In so ruling, the court weighed testimony from the plaintiffs essentially stating that they could not remember whether they saw the update and testimony from Facebook’s eDiscovery and litigation case manager pointing to records showing when the plaintiffs received those notifications.
The plaintiffs’ inability to remember whether they had seen the notifications were insufficient to raise a question of fact, the court wrote. Judge Tigar opined that contract principles would be rendered meaningless if parties who did not remember agreeing to them could use that as an excuse to bow out of their terms.
Similarly, the court rejected arguments that the in-app notification was insufficient to demonstrate assent. In analyzing the “browsewrap” update, the court said it was conspicuous enough to put users on notice of changes to the terms, and if they so wished, users could have clicked a “learn more” button that would have apprised them of the arbitration clause.
Having punted the claims to arbitration, the court directed the clerk to administratively close the case.