A Chicago federal judge will allow a class action lawsuit to proceed against Shutterfly over its face tagging software, rejecting the online photo sharing company’s request to delete the action accusing it of violating an Illinois biometric privacy law.
On Sept. 15, U.S. District Judge Joan B. Gottschall denied Shutterfly’s motion to dismiss the lawsuit brought by a group of plaintiffs lawyers, including attorneys from the firms of Lite DePalma Greenberg LLC, of Chicago; Ahdoot & Wolfson PC, of West Hollywood, Calif.; and Carey Rodriguez O’Keefe Milian Gonya LLP, of Miami. They had filed suit on behalf of named plaintiff Alejandro Monroy, of Florida.
According to the lawsuit, Monroy was included in a photograph someone he knew uploaded from a device in Illinois to Shutterfly. Monroy does not have an account with Shutterfly. However, when the photograph that included his image and likeness was uploaded to the photo sharing site, Monroy’s face was tagged by the uploader, resulting in his “facial scan” – the unique geometry of his facial features - being saved under his name in Shutterfly’s database.
When this happened, without first obtaining written consent from him, Monroy alleged Shutterfly’s face tagging system violated his rights under an Illinois law which restricts the unauthorized use of people’s “biometric identifiers,” which can include fingerprints, retinal scans and facial geometry.
In the lawsuit, filed in 2016, Monroy and his attorneys asked the court to expand the action to include all others whose rights under the Illinois Biometric Information Privacy Act may have been allegedly violated by Shutterfly’s software.
Monroy’s lawsuit marked the second time Shutterfly has faced a class action under the Illinois BIPA law.
In May 2016, Shutterfly settled a similar legal action brought by a California man, Brian Norberg, who also asserted, while he did not have a Shutterfly account, Shutterfly had scanned and saved his facial geometry when someone else uploaded a photo that included Norberg’s image and then tagged him in it. The terms of that settlement were not disclosed.
Monroy’s lawsuit landed in court about six months after Shutterfly settled the Norberg case.
Other companies, including Facebook and Google, have also faced class actions under the Illinois BIPA for their face tagging software. Those cases are still pending.
In the Monroy action, Shutterfly first asserted the Illinois BIPA law should not apply in this instance because the law specifically excludes photographic images from the list of protected biometric identifiers.
Judge Gottschall, however, said that defense was similar to others attempted by Facebook and other BIPA defendants, which were also rejected by judges in those cases. While photographs may not qualify as protected biometric identifiers, data, such as facial geometry, or even retinal patterns or fingerprints, gleaned from a digital scan of those photographs could qualify for BIPA protections.
“And even if particular forms of biometric data cannot be obtained via photographic images using present-day technology, it would be rash, given the pace of technological development, to assume that obtaining such data via photographs will not become possible in the future,” Gottschall wrote.
She also rejected, for now, Shutterfly’s argument the Illinois BIPA law should not apply to a Florida resident suing a California company. She said too many questions concerning precisely how and where the scan of Monroy’s likeness occurred to allow Shutterfly to win dismissal on that point at this stage of the proceedings.
“… The location of other important circumstances is as yet undetermined,” she wrote. “For example, it is unclear where the actual scan of Monroy’s face geometry took place, and where the scan was stored once it was obtained. Answers to these questions require a fuller understanding of how Shutterfly’s facial recognition technology operates.”
And the judge also sided in “a close one” with the plaintiffs over Shutterfly’s assertion Monroy can’t prove he was actually harmed by the facial scan, noting under the Illinois law, it may be enough to simply show the law was violated, as “nothing in BIPA makes recovery dependent upon a showing of ‘adverse effects.’”
“… While the matter is not free from doubt, the court declines to hold that a showing of actual damages is necessary in order to state a claim under BIPA,” Gottschall wrote.
Shutterfly is represented in the action by attorneys with the firms of Mayer Brown LLP, of New York and Los Angeles.