A Chicago federal judge has refused to grant class action status to a woman's lawsuit against Chicago-based Groupon, which alleged the e-commerce provider has wrongly used Instagram photos to promote its deals for restaurants and other businesses, saying there are too many individualized claims for a class action to be practical.
U.S. District Judge Ronald Guzman delivered the decision March 4. Guzman's ruling favored Groupon in a putative class action brought against it by named plaintiff Christine Dancel.
Dancel alleged Groupon breached the Illinois Right of Privacy Act by taking photos from personal Instagram accounts, including her own, without permission to use in its marketing. Dancel also said Instagram's rules say users own their own photos, and advertisers are barred from utilizing them.
Groupon said photos were not accessible if a user’s account was set to private.
In Dancel's case, she said she took a photograph of herself and her boyfriend in August 2015 at a restaurant in suburban Vernon Hills, then posted it on Instagram and tagged it with the restaurant’s name. Groupon later posted the photo, along with others, on the restaurant’s Deal Page in January 2016. Dancel said she neither has a Groupon account nor mentioned Groupon in her post.
Court papers said Groupon obtained the photos through software that lets Groupon make a request for Instagram photos taken at businesses for which Groupon hosted Deal Pages and Merchant Pages. Groupon engages in this practice to “convince consumers to make the purchase because the other consumers have already done the same,” according to Dancel, adding the images contain hyperlinks to Instagram accounts and profiles.
Dancel filed her case in 2016 in Cook County Circuit Court, but Groupon had it moved in March 2018 to federal district court.
More than 1,000 Instagram users have been affected, according to Dancel.
Groupon contended determining identities of users, to see if their identities were appropriated, would create "insoluble case management problems," making individual claims superior to class action.
Judge Guzman agreed with Groupon, saying user identifications cannot be ascertained with the same evidence. As examples of the difficulty that would ensue, Guzman pointed to several of the usernames from a cache of Image URLs saved by Groupon: artistbarbie, sawitte, suwalski2000, ladysolinc, urbantraveller and isa.tdg.
Establishing identities is further complicated, because some photos are not of people, but of such things as a bowl of noodles at a restaurant or the fingernails of a person after a manicure.
"It is simply impossible to make any type of across-the-board determination as to whether these names 'identify' a particular person, as that term is defined by the IRPA. This is true even if an Image URL that Groupon received includes a photo of the individual associated with the username. While a photograph of a person may assist a factfinder in concluding that an individual’s identity has been used, this determination must still be made on a username-by-username (photo-by-photo) basis," Guzman observed.
Citing a 2018 Chicago federal court opinion, Guzman found the proposed class action is not "sufficiently cohesive."
Dancel is represented by Ari Scharg, Benjamin Richman, Benjamin Thomassen and Jay Edelson of the Chicago firm of Edelson PC, as well as by Rafey Balabanian, of the firm's San Francisco office.
Groupon is defended by Brian Cohen, Christopher Moore and Eric Macey of the Chicago firm of Novack & Macey.