CHICAGO — A federal appeals panel says a lower court was right to close out a class action accusing Groupon of wrongly using people’s Instagram photos, because the judges agreed Instagram usernames aren’t enough to establish the identity of untold numbers of potential additional plaintiffs.
In March, U.S. District Judge Ronald Guzman refused to grant class action status to Christine Dancel, who filed suit in state court in 2016, alleging Groupon wrongly used Instagram photos to promote deals for restaurants and other businesses. The judge said there are too many individualized claims for a class action to be practical. Groupon removed the case to federal court and moved to deny the class certification.
In October, on appeal, a three-judge panel of the U.S. Seventh Circuit Court of Appeals ordered a “limited remand” of Guzman’s decision, because Groupon’s notice of removal didn’t “allege the citizenship of even one diverse member of the putative class.” After Groupon corrected that deficiency, Guzman again refused to certify the class, prompting a second appeal.
Ari Scharg
Seventh Circuit Judge William Bauer again wrote the new opinion, issued Dec. 18. Circuit judges Michael Brennan and Amy St. Eve again concurred.
The issue rests on the Illinois Right of Publicity Act.
Dancel said Groupon’s unauthorized use of her 2015 Instagram post from a Vernon Hills restaurant — because it included her username, mewochristine — violated the IRPA protection of an “attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener.” She further noted Instagram doesn’t allow duplicate usernames, so each one is inherently an identity as defined by the IRPA.
According to Bauer, Guzman questioned if online user names were enough to certify a class. Not all usernames have the same contextual information allowing them to be linked to the person who created the account, the judges said. Guzman “listed several of the usernames belonging to class members — e.g., eawhalen, artistbarbie, isa.tdg, loparse, johanneus — and concluded that it was ‘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.’ ”
Dancel said Guzman’s ruling amounts to deciding her complaint on its merits at the certification stage, “a higher evidentiary burden than the IRPA requires,” Bauer wrote. But the panel said if the question weren’t answered in Dancel’s favor, it wouldn’t preclude anyone from suing Groupon individually.
“If usernames are not categorically an identity under the IRPA, and the court decertified the class, then the same element would remain entirely subject to dispute for each plaintiff,” Bauer wrote. “Nothing significant will have been decided, because each member could provide individualized evidence — her username’s content — on top of the common evidence to prove her username is an identity.”
Dancel drew a comparison between Instagram accounts and email addresses, but the panel pointed to a 2017 11th Circuit Court of Appeals opinion, United States v. Hastie, in which that panel held an email address can qualify as personal information, but only because of their content and not simply because they are an email address belonging to an individual.
“A username’s content, and not its nature, is likewise necessary to decide whether it is an identity under the IRPA,” Bauer wrote, as the panel explained Guzman didn’t err in his analysis. The IRPA “demands that an attribute, even a name, serve to identify an individual. And not just an individual but ‘that individual,’ the one whose identity is being appropriated.”
Determining Guzman didn’t abuse discretion, the panel affirmed his order denying class certification.
Dancel is represented by attorney Ari Scharg and others with the Chicago firm of Edelson PC.
Groupon has been defended by attorneys Brian Cohen, Christopher Moore and Eric Macey of the Chicago firm of Novack & Macey.