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From Antitrust Law Daily, June 16, 2014

LinkedIn may be liable for unauthorized collection, use of email addresses

By Linda O’Brien, J.D., LL.M.

Social networking website LinkedIn may be liable for the unauthorized collection and use of email addresses from the contact lists associated with its users’ accounts, according to the federal district court in San Jose, California. LinkedIn users alleged sufficient facts to establish a violation of California’s common law right of publicity. However, they failed to establish claims under the California Unfair Competition Law, Stored Communications Act (SCA), Wiretap Act, and Comprehensive Computer Data Access and Fraud Act (Perkins v. LinkedIn Corporation, June 12, 2014, Koh, L.).

LinkedIn is a social networking website aimed toward professionals and has more than 200 million users. Users maintain profiles and utilize LinkedIn to view each other’s profiles and exchange messages. Paul Perkins and several other individuals were users of LinkedIn. The plaintiffs filed suit against LinkedIn, alleging violations of California’s common law right to publicity, Unfair Competition Law (UAL), Stored Communications Act (SCA), Wiretap Act, and Comprehensive Computer Data Access and Fraud Act (CCFA). The plaintiffs asserted that the website operator harvested email addresses from contact lists of email accounts associated with the plaintiffs’ LinkedIn accounts and by sending repeated invitations to join LinkedIn to the harvested email addresses. The plaintiffs also alleged that the emails were valuable to LinkedIn to attract new users and expanded the market the LinkedIn could advertise its premium services. LinkedIn moved to dismiss the complaint.

Right of publicity. The court determined that the plaintiffs had Article III standing to pursue their right to publicity claims. To satisfy standing, a plaintiff must show (1) an injury in fact that is concrete, particularized and actual or imminent, (2) the injury is traceable to the defendant’s action, and (3) the injury is redressable by a favorable ruling. In rejecting LinkedIn’s argument that the growth of its membership base was an insufficient theory of commercial value, the court noted that LinkedIn’s use of users’ names to promote its services resulted in commercial advantage and profits for LinkedIn. The use of an individual’s name for personalized marketing purposes was the type of harm that the common law right of publicity as aimed at preventing.

Additionally, the plaintiffs plausibly alleged that they did not consent to the second and third reminder endorsement emails, according to the court. A reasonable user could have thought that by agreeing to LinkedIn’s invitation to connect with user contacts that only one invitation would be sent and further invitation requests would require authorization. However, their initial consent did not defeat the common law right of publicity with respect to the second and third endorsement emails. Moreover, repeated invitations emails could injure a user’s reputation by becoming annoying to the recipient and be personally and professionally harmful to the user.

Unfair Competition Law. The plaintiffs failed to sufficiently state a claim under the UCL based on misrepresentations. The UCL prohibits any unlawful, unfair, or fraudulent business act or practice. The plaintiffs’ allegations that they registered for LinkedIn and the endorsement emails were sent without their authorization were insufficient to show that they actually read or relied on any purported misrepresentations by LinkedIn. Therefore, the misrepresentation-based claims under the UCL were dismissed. However, the plaintiffs sufficiently demonstrated unlawful conduct and standing to sue regarding their claims under the UCL that were derivative of their common law right of publicity cause of action, the court noted.

Store Communications Act and Wiretap Act. A disclosure was presented while a user who creating a LinkedIn profile that allowed or did not allow LinkedIn to import a user’s contacts email from the user’s Google account. A reasonable user who viewed the disclosure would have understood that LinkedIn was collecting email addresses from the user’s external email account and the user’s acquiescence demonstrated consent to the collection. None of the plaintiffs elected to skip the authorization. Moreover, the plaintiffs cited no authority that the duration of maintaining the collected data was relevant to the issue of consent. Thus, LinkedIn’s defense of consent and authorization applied to the plaintiffs’ SCA and Wiretap Act claims.

Comprehensive Computer Data Access and Fraud Act. The court also determined that the plaintiffs failed to sufficiently allege that LinkedIn breached technical or code based barriers in place to restrict user access without authorization. There were no allegations of what technical or code based barriers were overcome once a user authorized LinkedIn to access his or her email account contacts and was not re-prompted for a password. Further, the plaintiffs suffered no harm since users’ specifically authorized LinkedIn to collect the email addresses of contacts, the court concluded.

The case is No. 13-CV-04303-LHK.

Attorneys: Larry C. Russ (Russ August & Kabat) for Paul Perkins. Jerome Cary Roth (Munger Tolles & Olson LLP) for LinkedIn Corp.

Companies: LinkedIn Corporation

MainStory: TopStory Privacy StateUnfairTradePractices CaliforniaNews

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