A recently filed case in California federal court alleges that Facebook’s highly sophisticated advertising service, which allows advertisers to include and exclude specific classes of users from the advertisement’s audience violates the federal fair housing act. The plaintiffs are asking the court to certify a nationwide class action to allow potentially thousands of plaintiffs to join the suit.
According to the complaint, Facebook’s Ad Platform has an “Exclude People” and an “Include People” feature.
This means that an advertiser can work with Facebook to create an audience that is more likely receptive to the advertisement. So, if the ad is for infant diapers, the advertiser would ask Facebook to home in on young parents. The advertiser may at the same time ask Facebook to exclude older users. There is nothing inherently wrong about that use of the feature.
But advertising is not a one size fits all proposition. And advertisements for housing are subject to more scrutiny than other advertisements. The Fair Housing Act of 1968 makes it unlawful:
To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or any intention to make any such preference, limitation, or discrimination.
And regulations promulgated under the Act include in the definition of discriminatory conduct:
Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, handicap, familial status, or national origin.
This means that targeted advertising, which may be innocuous for infant diaper ads is more problematic for housing advertisements. And plaintiffs are using Facebook’s own description of the Ad Platform product against it. The complaint includes this passage from the Facebook website:
Why you see a particular ad
Our ad system prioritizes what ad to show you based on what advertisers tell us their desired audience is, and we then match it to people who might be interested in that ad. This means we can show you relevant and useful ads without advertisers learning who you are. We don’t sell any individual data that could identify you, like your name.
When an advertiser wants to reach…
Plaintiffs contend that this capability has allowed Facebook, “as recently as 2019, (to mine) user data to create categories of users defined by race or skin color other than white and permitted advertisers to exclude those categories from the audience of housing advertisements.” It also contends that “Facebook approved and published housing advertisements for sale and rental properties which excluded African Americans and single parents and/or that were based on sex, familial status and other protected classes from the ad’s target audience.”
If plaintiffs can prove these allegations, Facebook could have a problem. Facebook may argue, however, that it is immune from liability under the Communications Decency Act. That federal law provides that an internet service provider is not considered the publisher of content submitted by a third party. But typically, that protection does not apply when the internet service provider is involved in the content creation.
Plaintiffs seem to anticipate that defense in their complaint. A large portion of the complaint focuses on the extent of Facebook’s involvement in the creation of the Ad Platform and its efforts to assist advertisers with creating the criteria for defining the audience. Those allegations are no doubt directed at the CDA defense.
This one will be interesting to watch unfold. As is often the case, it’s not so much the tool, as it is the way it’s used.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.
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