Cook County Record

Friday, December 6, 2019

Class actions deleted vs Spokeo, Intelius, others over web search name 'keyword insertion' ad tricks

By Jonathan Bilyk | Aug 30, 2017

In the 21st century,many out-sourcing options are as available as a computer keyboard. | Adikos / Flickr

A Chicago federal judge has tossed a cluster of class action lawsuits launched against online personal information listing providers, including Spokeo, Intelius. InstantCheckmate and BeenVerified, saying a web search advertising technique didn’t violate plaintiffs’ rights to control the use of their identity simply by using a person's name in an ad designed to steer people to their online people search products.

On Aug. 28, U.S. District Judge Robert M. Dow dismissed the legal actions brought by the Chicago law firm of Edelson P.C. on behalf of named plaintiffs identified as Nicole Vinci and Anna Dobrowolski against the companies.

“The complaints do not suggest that the ads identify the plaintiffs in any manner except for name,” Dow wrote. “There is no allegation that either plaintiff has the kind of celebrity or public status to be identified by name alone, and there is nothing in the complaint to suggest that the ads identify this Anna Dobrowolski and this Nicole Vinci over any other person bearing that name.”

The actions first landed in Cook County Circuit Court in January, when attorneys for the Edelson firm filed them against the various companies, beginning with Spokeo, over the span of four days. The companies then removed the cases to federal court, saying that was the appropriate venue to resolve the complaints.

The lawsuits all alleged the companies’ online advertising tactics violated the rights of Illinois residents under the state’s Right of Publicity Act. The lawsuits centered on the websites’ 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 or similar sites 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 or similar sites can help the searcher find more information about someone.

In the Spokeo lawsuit, 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 lawsuits alleged the websites would essentially claim the names of people, and then use their names, without their consent, as “a marketing ploy” to hawk their reports or memberships.

In response, the companies asked the federal judge to dismiss the actions on various grounds. Intelius, for instance, asserted Dobrowolski – the plaintiff named in the Edelson suit against it - could not sue the company in Illinois because they could not establish Intelius’ practices demonstrated it “expressly aimed its ads at Illinois, knowing that effects would be felt in Illinois.”

Judge Dow agreed, ruling courts in Illinois lacked jurisdiction to consider these claims.

“Considering Dobrowolski’s arguments and changing a single variable – her residency (for example, Indiana instead of Illinois) – there would be absolutely nothing tying Intelius’ conduct to Illinois,” Dow wrote. “There is no allegation that Intelius knew it was reaching into Illinois when it allowed Dobrowolski’s name to be used in its ads.”

The judge, however, denied a request from Intelius for sanctions against Dobrowolski, saying he did not believe she should be punished for bringing the lawsuit.

The judge also dismissed the lawsuits against the other three corporate defendants sued by Edelson through Vinci and Dobrowolski, saying the use of the plaintiffs’ names in such web ads didn’t violate their rights to control publicity of their identities.

The defendants particularly found traction in arguing the use of the plaintiffs’ names in the web ads don’t clearly identify them to the public.

Judge Dow pointed to case law establishing the Illinois Publicity Rights law can only be violated if such identification is achieved “to a reasonable audience.” And in most cases not involving a celebrity, merely using a person’s name doesn’t meet that standard, he said.

“IRPA requires appropriation of attributes sufficient identify an individual to a reasonable audience, and the plaintiffs have failed to allege anything more than ads using names matching the plaintiffs’ names, names that were populated from the results of third-party searches,” the judge wrote.  “Therefore, the plaintiffs have failed to state an IRPA claim.”

The dismissals were without prejudice, meaning plaintiffs can reintroduce their claims and attempt to remedy the shortcomings identified by the judge.

The defendant companies were represented in the action by the firms of Mayer Brown LLP, of Chicago and New York; Hinshaw & Culbertson LLP, of Chicago; Dentons US LLP, of Chicago; Mandell Menkes LLC, of Chicago; and Vedder Price P.C., of Chicago.

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Organizations in this Story

Hinshaw & Culbertson LLPMandell MenkesEdelson, PCDentons - ChicagoU.S. District Court for the Northern District of IllinoisMayer BrownVedder Price PC