Plaintiff Christine Dancel filed her class action complaint Feb. 5 in Cook County Circuit Court. She alleged Groupon violated the Illinois Right of Publicity Act by “scraping” photos from personal Instagram accounts, including her own, without permission to use in its marketing materials. She alleged “the only connection that these personal pictures have to Groupon is that the individuals ‘tagged’ their photographs on Instagram with the name of the restaurant or store featured in the deal being offered.”
As part of her complaint, Dancel included an image of a Groupon offer for Philly G’s, an Italian restaurant in Vernon Hills where she dined in August. The landing page, a dedicated URL for the Philly G’s coupon offer, included the name and address of the restaurant, a map tagged with its location and nine photographs “purportedly taken at the location of the offered business.” Dancel’s image is included in the collage, though she neither has a Groupon account nor mentioned Groupon in any way in her Instagram post.
The complaint said Groupon obtained the photos through Instagram’s application programming interface: “a computer protocol that allows for the interconnection of different services. Groupon makes an Instagram API request for photographs corresponding with the location of the business featured … and Instagram returns with a batch of photos matching the criteria.”
None of the photos, she noted, were tagged by the users who posted them with any connection to Groupon, only to the business in question.
This approach represented “a fundamental part” of the Groupon business model in that it aimed to “convince consumers to make the purchase because the other consumers have already done the same,” though there is no tangible connection between the Instagram users and Groupon itself, the complaint said. Positioning the photos near a portion of the deal page featuring tips from actual Groupon users, Dancel suggested, is an attempt to present the people in the pictures as “satisfied Groupon customers, even though they are not.”
“Beyond simply having consumers’ pictures appear on the Groupon advertisement without notice or permission, the pictures themselves contain a hyperlink to each individual’s personal Instagram account and social network profile,” the complaint said.
Dancel further contended Groupon is violating Instagram’s terms of service, citing Instagram’s terms of conditions, frequently asked questions and other literature that plainly states users own their own photos and that advertisers are not allowed to use the images.
The putative class would include more than 1,000 members, according to Dancel. In addition to class certification, Dancel asked the court to issue an injunction forcing Groupon to stop using pictures without permission, legal fees, punitive damages and an award of either profits from unauthorized use of Instagram averages or statutory damages in the amount of $1,000 per Illinois Right of Publicity Act violation, whichever is greater.
The IRPA, adopted in 1999, “protects consumers from the unauthorized use of their name, signature, photograph, image, likeness or voice for commercial purposes.” It stipulates prior written consent for use of an identity for commercial purposes and does not require the person seeking relief to be a public figure.
Dancel’s attorneys are Jay Edelson and Ari J. Scharg, of Edelson, Chicago, and Rafey S. Balabanian, of the firm’s San Francisco office.