Lawsuits against websites selling background checks will proceed after a federal judge struck down the sites’ attempts to dismiss them last week.
Robert Fischer and Stephanie Lukis both sued Instant Checkmate in Cook County Circuit Court for using their personal information to advertise the website’s background check subscription service. Lukis also sued Whitepages.com on the same allegations. The suits were transferred to U.S. District Court at the request of the defendants.
The companies made a number of arguments in their effort to get the cases dismissed, including contending that the advertisements are protected as free speech and that their background-check databases are works of literature.
The two websites operate in a similar manner; users input the first and last name of the person they are looking for, and the site scours a database for matches. Previews of potential matches are shown with identifying information such as age and city of residence. Users are then invited to buy a “full report” on the individual or to subscribe to a monthly service in which they can have access to multiple background reports.
In advertisements for their services, both websites feature Lukis’ and Fischer’s preview screens, though neither sought consent from the plaintiffs. The Whitepages.com ad includes Lukis’ first and last name, middle initial, age range, a phone number and a list of addresses. The Instant Checkmate ads included Lukis’ and Fischer’s first and last names, middle initials, exact ages, cities of residence, lists of former cities of residence and lists of possible relatives.
The websites populate their databases with information from a variety of public and private sources, including court records, property databases and regulatory agency databases. U.S. District Court Judge Gary Feinerman pointed to this regular scraping of Illinois state agency databases when explaining why he was unpersuaded by Whitepages.com’s argument that it does not have sufficient contact with Illinois to fall under personal jurisdiction. The company’s headquarters are in Washington state.
“Whitepages knowingly searches for and obtains private and public records regarding Illinois residents, identifies Illinois residents in its search results and profiles them in free previews, and sells monthly subscriptions for background reports that it prepares from those records,” Feinerman wrote in his opinion. “These actions qualify as the kind of ‘intentional contacts’ required for the exercise of specific jurisdiction.”
Both Whitepages.com and Instant Checkmate tried to prove that their featured free previews did not violate the Illinois Right of Publicity Act, or IRPA, as the plaintiffs claimed. The relevant section of the law prohibits use of an individual’s identity for “commercial purposes” without written consent.
Though Feinerman called Whitepages.com’s use of Lukis’ identity to sell its subscription service “a textbook example under the IRPA of using a person’s identity for a commercial purpose,” the company claimed the law does not apply because the preview only displayed publicly available information. The law, however, covers all aspects of a person’s identity, without distinguishing whether the information came from public or private sources, Feinerman wrote.
Instant Checkmate took a different approach, citing a section of the law that says it does not apply to use of a person’s identity “in an attempt to portray, describe, or impersonate that individual” in a performance, book, musical composition, or other art work. The company said the exclusion applies because its background reports “are effectively an online book or encyclopedia about people.”
“Instant Checkmate’s argument misses the point, as it fails to acknowledge that Lukis’ and Fischer’s IRPA claim is directed at the free previews, not at the background reports,” the court wrote. “Even indulging the generous assumption that the free previews qualify as a ‘performance, work, play, book, article, or film,’ they are alleged to be a commercial advertisement … specifically, for Instant Checkmate’s monthly subscription service.”
Whitepages.com tried to argue that it acts as a passive transmitter or publisher of information from another content provider, which the court struck down based on allegations that the company actively seeks out and compiles its information. The company also claimed that the advertisements are entitled to First Amendment protection because they “promote Whitepages’ directory, which is itself protected by the First Amendment.” Feinerman said that since no complete background report was submitted to the record, it is impossible for the court to determine whether the reports are protected speech and whether that protection extends to the advertisements.
The defendants were ordered to submit their answers to the complaints by May 14.
The plaintiffs are represented in the action by attorneys from the firm of Beaumont Costales, of Chicago.
Instant Checkmate is defended by attorneys with the firms of Gordon Rees Scully Mansukhani LLP, of Chicago; Dentons US LLP, of Chicago, and Venable LLP, of Washington, D.C.
Whitepages is represented by attorneys with the firm of Vedder Price P.C., of Chicago.