A federal judge has rebuffed a class action accusing Ancestry.com of violating a state privacy law by publishing yearbook photos online.
Sergio Bonilla sued Ancestry.com in December 2020,alleging the website unjustly enriched itself by using his photo from the 1995 Omaha Central High School yearbook. He alleged this violated his rights under the Illinois Right of Publicity Act. He also brought counts of violating the Illinois Consumer Fraud and Deceptive Business Practices Act and intrusion upon seclusion.
Ancestry initially moved for dismissal for lack of jurisdiction and failure to state a claim, which U.S. District Judge Virginia Kendall granted with respect to the consumer fraud and intrusion allegations. But she denied the dismissal request for the remaining counts. She rejected Ancestry’s arguments it was immune from liability under the Communications Decency Act and that the Copyright Act pre-empted Bonilla’s lawsuit. She also said Bonilla’s claims didn’t fall under any IRPA exemptions.
After that ruling, Ancestry moved for summary judgment. Bonilla both opposed that motion and asked Kendall to order Ancestry to respond to his request for documents and other questions. Ancestry sought a protective order for discovery requests.
In seeking summary judgment, Ancestry argued Bonilla’s IRPA claim was time barred. Kendall said that law doesn’t expressly place any time limits on lawsuits, but said several courts have determined a one-year limit applies because the Right of Publicity Act supplanted a common-law tort for likeness appropriation. She further explained that clock begins with the initial publication, rejecting Bonilla’s contention a different rule be applied allowing a new claim for every time a mass publication reaches a third party.
“Putting the pieces together, Bonilla had to bring his lawsuit within one year of his yearbook’s first publication,” Kendall wrote. “He did not. On June 27, 2019, Ancestry began hosting the 1995 Central High School Yearbook with Bonilla’s image. Bonilla waited until Dec. 14, 2020, to file his complaint, over a year later and outside the statute of limitations.”
In order to establish a continuing violation, Kendall continued, Bonilla would have to show continued illegal conduct, not continuing legal injury from one alleged violation. Although his photo might’ve been used in “various mediums over an extended period,” she wrote, Ancestry had a single purpose, and it “never changed, altered, reused or expanded upon the original image.” That website users might see the photo, whether on a free trial or paid membership, doesn’t affect the underlying facts.
“While the yearbook record may appear in response to a user’s query, that is part of a search engine’s ordinary operation,” Kendall wrote. “Customers use Ancestry’s databases to find information related to genealogy. The database filters search results within the company's voluminous records to aid the user in locating sought-after records. But the company’s only ‘conscious intent’ to publish the image comes from the initial upload of the yearbook, after which the technology, not the company, does the real work.”
Kendall also said Ancestry had no part in when Bonilla chose to sue. The judge rejected Bonilla's arguments the statutory clock should begin only when he learned his photo was posted. And she rejected his contention that Ancestry essentially resets the clock every time it makes a payment to PeopleConnect, which licenses the yearbook names and photos.
“Ancestry never republished or reused his image in these transactions,” Kendall wrote. “These payments were simply a routine part of the company’s business.”
Because the unjust enrichment claim is linked to the IRPA allegation, Kendall said, it also failed. Given her ruling on summary judgement, she also denied Bonilla’s discovery request for documents in four different categories.
Bonilla has been represented in the case by attorneys Raina C. Borrelli and Samuel J. Strauss, of the firm of Turke & Strauss, of Madison, Wisconsin; Michael F. Ram and Marie N. Appel, of Morgan & Morgan Complex Litigation Group, of San Francisco; Shannon M. McNulty, of Clifford Law, of Chicago; and Benjamin R. Osborn, of Brooklyn, New York.
Ancestry has been represented by attorneys Shon Morgan, John Wall Baumann, Daniel R. Lombard and Christina Aide Henriquez, of the firm of Quinn Emanuel Urquhart & Sullivan, of Chicago, Los Angeles and Redwood Shores, California.