Spokeo, a company whose name has become synonymous with a recent
U.S. Supreme Court decision, the impact of which remains a heavily debated
topic in class action litigation across the
country, has been served with a new class action lawsuit in Chicago, this time
brought by an Illinois woman who claims the company has violated Illinois law
by using a web search advertising trick to use her name and those of others to
market its online people search products.
On Jan. 19, plaintiff Nicole Vinci, through her attorneys
with the firm of Edelson P.C. in Chicago, filed suit in Cook County Circuit Court
against the Pasadena, Calif.-based Spokeo Inc.
The lawsuit argues the company’s online advertising tactics
violate her rights under the Illinois Right of Publicity Act, by, in effect,
using her personal information without her consent to persuade others to buy a
report about her, generated by Spokeo.
The complaint centers on Spokeo’s use of a technology known
as “Dynamic Keyword Insertion” to generate web ads targeted at people
conducting online searches.
Under that practice, when a person inputs the name of a
person – either their own, or that of another – into a search engine, like
Google or Bing, online advertising purchased by Spokeo seizes on that search to
create a web ad specifically targeted at the person conducting the search. It
does so by simply inserting the name of the person whose name had been plugged
into the search engine, making the user believe Spokeo can help the searcher
find more information about someone.
For instance, Vinci said a web search for her name would
have produced an ad headlined, “We Found Nicole Vinci – Looking for Nicole
Vinci?” The ad would then include a link to Spokeo’s website, where visitors
can then purchase a report on Vinci or other people, containing information
culled from a variety of public sources and databases.
“The reason that Spokeo prominently features people’s names
in its advertisements is to draw attention to its products and create a sense
of alarm and urgency in the hopes that the targeted consumer will purchase a
report,” the lawsuit said. “In other words, Spokeo uses people’s names in its
advertisements as a marketing ploy.”
However, since none of the people whose names Spokeo uses to
generate the ads ever gave their consent to Spokeo to use their names and
identities, the complaint said Spokeo’s practices violate Illinois law.
“By using Illinois residents’ full names in its paid
advertisements without their consent for its commercial gain, Spokeo violated –
and continues to violate – the Illinois Right of Publicity Act,” the lawsuit
argued.
In the lawsuit, Vinci and her attorneys asked the court to
expand the litigation to include a class of potentially many other plaintiffs.
The complaint did not estimate how large the class might be, but said they are
seeking a class including, “All Illinois residents 1) whose names were
displayed in one or more Spokeo advertisements on Google or Bing, and 2) who
have never purchased any products or services from Spokeo.”
The plaintiffs are seeking damages of $1,000 per violation,
as is called for under the Illinois law, as well as unspecified punitive
damages and attorney fees.
The lawsuit, however, could face a challenge based on the
Supreme Court decision bearing Spokeo’s name.
In Spokeo v. Robins, the Supreme Court declared some
plaintiffs should not be allowed to sue businesses and others whose actions,
potentially including violating privacy or improper use of their identities or
personal information. While those actions may technically violate a law, if
they do not inflict a “concrete injury” on victims, the lawsuits could be
tossed, the court said in its 2016 decision.
That decision has remained a hotly debated topic in
courtrooms involving similar litigation across the U.S. in the months since,
with federal district judges and appellate circuit judges often coming to
widely varying conclusions on how the reasoning in Spokeo should be enforced, and what precisely defines a “concrete
injury” under the Spokeo decision.
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