Technology & Marketing Law Blog
Eric Goldman
April 21, 2020
Whitepages compiles and generates “background reports” on people, remixing content from a database of public and private records that allegedly incorporates 2B+ records/month. In response to searches on people’s names, Whitepages provides free previews, such as this one included in the court opinion (this is a truncated view–it goes on for 3 pages):
Much of the free preview provides links indicating that more information about the person may be available behind Whitepages’ “premium” paywall. Thus, the plaintiffs assert that the free preview acts as advertising for the premium service.
Instant Checkmate runs a similar service to Whitepages. The interface is different, but the plaintiffs still characterize the free preview as advertising for the paywalled database.
The plaintiffs claim that the free preview violate Illinois’ publicity rights statute by displaying people’s personal data in the “ads.” The defendants moved to dismiss. This case reminded me a little of the uncited Facebook Sponsored Stories case (Fraley v. Facebook)….
Section 230. The court might have said that Section 230 doesn’t apply to publicity rights claims as IP claims (which is probably true everywhere except the 9th Circuit), and the court doesn’t address the closely analogous FTC v. Accusearch case denying Section 230 protection for the sale of telephone call records. Instead, citing the terrible 7th Circuit Huon decision, the court says “Whitepages did not act as a mere passive transmitter or publisher of information that was ‘provided by another information content provider.’ Rather, it is alleged to have actively compiled and collated, from several sources, information regarding Lukis. The CDA therefore does not shield Whitepages from liability.”
This past week, a California district court again declined Facebook’s motion to dismiss an ongoing litigation involving claims under the Illinois Biometric Information Privacy Act, 740 Ill. Comp Stat. 14/1 (“BIPA”), surrounding Tag Suggestions, its facial recognition-based system of photo tagging. In 2016, the court declined to dismiss the action based upon, among other things, Facebook’s contention that BIPA categorically excludes digital photographs from its scope. This time around, the court declined to dismiss the plaintiffs’ complaint for lack of standing under the Supreme Court’s 2016 Spokeo decision on the ground that plaintiffs have failed to allege a concrete injury in fact. (Patel v. Facebook, Inc., No. 15-03747 (N.D. Cal. Feb. 26, 2018) (cases consolidated at In re Facebook Biometric Information Privacy Litig., No. 15-03747 (N.D. Cal.)). As a result, Facebook will be forced to continue to litigate this action.
Comments : Comments Off on California Court Declines to Dismiss Illinois Facial Recognition/Biometric Privacy Suit against Facebook on Standing Grounds
Categories : Digital IP Torts, Privacy
An appeal brought by Lindsay Lohan against Take-Two Entertainment and Rockstar Games in relation to the Lacey Jonas character in Grand Theft Auto V has inspired an amicus brief, filed last month, in support of the video game companies. I am not commenting on the merits of Lohan’s claim here. I also am not responding to the brief itself, but am just notating a few observations that relate to the New York discussion overall.
The Lohan case is pending in New York. The amicus brief references New York’s right of privacy statute (New York sections 50 & 51) and indicates that New York’s statute helped the court “dodge a bullet” through its narrow right of privacy provisions.
New York’s legislation, as it shapes New York’s position on the right of publicity and its narrow provisions concerning the right of privacy, is hardly a model for right or privacy or right of publicity legislation (not that anyone has called it a model). New York’s Sections 50 and 51 puts New York at odds with almost every state in the U.S. It allows no room for the critical policy reasons behind right of publicity recognition, as distinct from privacy rights. New York’s right of publicity deficiencies, stemming from the 115 year old legislation (though it has been amended a few times) are, in fact, the source of a lot of problems New York is experiencing.
Addressing New York’s 1903 statute, passed in the aftermath of Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), Professor J. Thomas McCarthy in The Rights of Privacy and Publicity, s.6:74 says:
“New York …is part of a tiny and dwindling minority of courts which still rejects any common law rights of privacy.
This is a defamation lawsuit brought against James Woods by a woman (Portia Boulger) who was wrongly identified as a Nazi supporter online. In March, candidate Trump had a rally in Chicago. The Tribune posted a photo of a woman at the rally giving the Nazi salute. The next day “@voxday” posted the photograph, along with a photograph of plaintiff identifying plaintiff as “Organizer (Women for Bernie).”
Boulger sued Woods in District Court in Ohio. Woods filed an answer, a motion for judgment on the pleadings, and after the time for service had expired, a motion for summary judgment or for dismissal for failure to perfect service.
Case citation: Boulger v. Woods, 2:17-cv-186 (S.D. Oh. Jan. 24 2018)
Plaintiff sued CNN under the Video Privacy Protection Act, alleging that CNN wrongly disclosed plaintiff’s viewing records without plaintiff’s consent. The allegation is that plaintiff used the CNN app, which records viewing history, and CNN sent this information to Bango, a third party data analytics company. CNN allegedly disclosed to Bango the viewing activity along with the MAC address (a unique string of numbers associated with plaintiff’s device). Bango then allegedly used the information to link the user’s MAC address to other information and built a profile of plaintiff that includes the name, location, phone number, email address, and payment information, combined with the viewing history that CNN disclosed.
You probably remember the story about a new dad’s Facebook Live broadcast of his baby’s birth. His video was covered by many media outlets, including some outlets that published snippets of the video (re the defendants in this case: 30 seconds for NBC, 22 seconds for ABC and Yahoo, and just a screenshot for CMG). Initially, the dad didn’t intend to publicly broadcast the birth, but the video has been publicly available for over a year and is still available today.
Earlier this year, the judge granted motions to dismiss by some of the news outlets based on fair use. The court didn’t issue a fair use opinion, but the recent opinion recapped the prior ruling:
In the beginning of 2017, Twitter said it would take on harassment and hate speech. CEO Jack Dorsey said the company would embrace a “completely new approach to abuse on Twitter” with open dialogue along the way.
For months, though, the company has offered few details about what it would do, or when. That changed late yesterday, when Twitter posted a timeline with specific promises on actions it will take.
The changes begin next week. On October 27, Twitter will expand what types of “non-consensual nudity” (aka “revenge porn”) that it takes action against. The company will already act when a victim complains, but Twitter will soon act even in cases where the victims may not be aware images were taken, instances like upskirt photos and hidden webcams. “Anyone we identify as the original poster of non-consensual nudity will be suspended immediately,” the October entry reads.
The controversial consumer gripe site, RipoffReport.com, is at it again. The First Circuit recently affirmed a lower court’s ruling that RipoffReport.com was entitled to immunity under Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (the “CDA” or “Section 230”) for defamation-related claims based on certain user posts on its site. (Small Justice LLC v. Xcentric Ventures LLC, 2017 WL 4534395 (1st Cir. Oct. 11, 2017)). This is the latest in a string of victories for RipoffReport.com on that issue. In this case, RipoffReport.com also successfully relied on its website “terms of use” to fend off a novel copyright attack from the plaintiff, the successor-in-interest to the copyright in the user postings at issue.
This is a putative class action lawsuit against Take-Two, the video game publisher. Plaintiffs allege that the “MyPlayer” feature on NBA 2K15 violated Illinois’ biometric information privacy statute. The feature allowed players to upload a face-scan and then use a version of that scan as their avatar in certain multiplayer games. Specifically, plaintiffs allege that Take-Two (1) failed to obtain consent; (2) disseminated biometric data without consent; (3) failed to provide details regarding the purpose or term of storage or use of the information, or an applicable retention schedule; and (4) failed to comply with appropriate security measures by transmitting the scans via standard wireless connections.
The district court dismissed on Article III standing grounds. The Second Circuit affirms.
Although the court remanded the case to give plaintiffs leave to amend the complaint, the dismissal is still a resonant victory for Take-Two and demonstrates that the Article III standing requirements under Spokeo can be an important limitation on claims based on bare procedural violations of the notice and consent provisions of the Illinois Biometric Information Privacy Act, 740 Ill. Comp Stat. 14/1 (“BIPA”).
.jpg.img.fullhd.medium.jpg){kind=link}