On June 12, 2014, Judge Lucy H. Koh from the U.S. District Court for the Northern District of California (San Jose) granted in part and dismissed in part Defendant LinkedIn‘s motion to dismiss in the Perkins v. LinkedIn Corp. case, 13-cv-04303.

Plaintiffs in this case are seeking to represent a class of LinkedIn users who used an email address when signing up for a LinkedIn account. Well, that would be all LinkedIn users, as you need an email address to sign up for the site. They brought a putative class action suit last September against the social media site, alleging it had harvested their email addresses during the sign-up process.

During that process, new users are given the option to allow LinkedIn to search their email contact list for individuals who are not already on LinkedIn. They are given next the option to choose whether or not to invite their contacts to connect with them on LinkedIn. If they do, the site sends an invitation to connect. These messages “come from the user’s name via LinkedIn and contain the following text: “I’d like to add you to my professional network… This text is followed by a signature line that contains the LinkedIn user’s name.” Two more messages are sent if the contact does not sign up. Plaintiffs refer to these messages as “endorsement emails,” because they are made to look, according to Plaintiffs, as if they have been sent by the user and as if the user endorses LinkedIn.

Plaintiffs alleged, inter alia, violation of California’s common law of publicity, of the federal Stored Communication Act (SCA) and of the federal Wiretap Act. Defendant moved to dismiss, claiming that consent was a defense to all of Plaintiffs’ causes of action and also because Plaintiffs had no Article III standing to claim a violation of their right to publicity, as they had failed to allege adequate injury.

Plaintiffs Have Standing  

In a class action, plaintiffs representing the class must show that they have been personally injured. It is not enough that unidentified members of the class have suffered an injury. LinkedIn argued that Plaintiffs had suffered no economic harm. Indeed, while California’s right of publicity protects everybody, not just celebrities, people who are not famous may have a difficult time proving that they have suffered harm because it is more difficult to prove that their names and/or likenesses have a commercial value.

Judge Koh found that Plaintiffs had standing under California’s right of publicity, as they had suffered sufficient injury to satisfy the “case or controversy” requirement of Article III of the Constitution and cited the Fraley v. Facebook case. In Fraley, the Northern District of California had found that plaintiffs, a class of Facebook users, had standing to claim that the social media sites had used their names and likenesses for marketing purposes, when they appeared on Facebook’s “Sponsored Stories” online advertisements. The Fraley Court found that plaintiffs had presented a coherent theory about how they had been injured by such practice, because Facebook profited financially from its users’ apparent endorsement of products and services to their friends. The Fraley Court reasoned that, as ads containing endorsement have more financial value, Facebook had gained more advertising revenue from that practice, and found that “Facebook had been unlawfully profiting from the nonconsensual exploitation of Plaintiffs’ statutory right of publicity” and plaintiffs and successfully identified a linear relationship between the value of their endorsement and additional advertising profit for Facebook.

In Perkins, Judge Koh noted that “using an individual’s name for personalized marketing purposes… is precisely the type of harm that California’s common law right of publicity is geared toward preventing” and concluded that “individuals’ names have economic value where those names are used to endorse or advertise a product to the individuals’ friends and contacts.”

SCA and Wiretap Act Claims Were Dismissed

Judge Koh dismissed both the SCA and the Wiretap Act claims.

The SCA, 18 U.S.C. § 2701 (a) makes it a crime to “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility.” In Theofel v. Farey-Jones, the Ninth Circuit interpreted what is an unauthorized access under the SCA by comparing the SCA with the common law of trespass: [l]ike the tort of trespass, the Stored Communications Act protects individuals’ privacy and proprietary interests. ” For the Ninth Circuit, “[a] defendant is not liable for trespass if the plaintiff authorized his entry,” but consent is not effectively given if the defendant knew, or should have reasonably known “that the plaintiff was mistaken as to the nature and quality of the invasion intended.”

The Wiretap Act, Title III of the Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which has been amended by the Electronic Communications Privacy Act of 1986, prohibits the interception and disclosure of wire, oral, or electronic communications, 18 U.S.C. § 2511. However, under 18 U.S.C. § 2511(2)(d), prior consent is a defense.

In Perkins, both parties conceded that the question of whether authorization or consent had been given to LinkedIn to access Plaintiffs’ contacts was whether a reasonable user who viewed the LinkedIn’s disclosures could reasonably understand that the site would be collecting email addresses in such a way that it would appear that the user had consented or authorized such collection.

The Court found a user could reasonably understand it would be the case and dismissed the SCA and the Wiretap Act claims. The Court noted that during the sign up process, LinkedIn disclosed that it was asking authorization to access the user’s contact list and that the user was given the option to decline. The Court further noted that this disclosure was shown on the sign up page, “prior to the moment at which LinkedIn is alleged to have engage in wrongful conduct” and “was not, as is often the case, a disclosure buried in a Terms of Service or Privacy Policy that may never be viewed.”

Right of Publicity Claim Was Allowed to Proceed for the Second and Third Endorsement Emails

There are four elements in a claim for violation of California’s common law right to publicity: “(1) the  defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to  defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

LinkedIn argued that Plaintiffs had consented to the use. For the Ninth Circuit, consent must determined in a common law right to publicity cause of action “ objectively from the perspective of a reasonable person,” Jones v. Corbis Corp.

While Judge Koh agreed with LinkedIn that a reasonable user would have understood that her name would be used in invitations to join LinkedIn sent to her contacts in the first endorsement email, Plaintiffs did not consent to the second and third reminder endorsement emails. The disclosures shown to the users during the sign-up process did not inform them that their contacts would receive not just one invitation, but three. Judge Koh noted that “[i]n fact, by stating a mere three screens before the disclosure regarding the first invitation that “We will not . . . email anyone without your permission,” LinkedIn may have actively led users astray.”

Therefore, the Court, while granting LinkedIn’s motion to dismiss as it relates to the first endorsement email, it found that” Plaintiffs had adequately pleaded lack of consent to the sending of the second and third  endorsement emails and that it is plausible that these subsequent emails created independent harm” and allowed this claim to proceed.

Image is eMail courtesy of Flickr user Esparta Palma under a CC BY 2.0 license

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