In Callahan v. Ancestry, 2021 U.S. Dist. LEXIS 37811 (Mar. 1, 2021), Plaintiffs filed a complaint in a Northern California district court alleging that Ancestry.com’s (“Ancestry’s”) use of Plaintiffs’ old yearbook photos and information in Ancestry’s Yearbook Database violated their privacy.  Plaintiffs sued Ancestry individually and on behalf of a putative California class claiming violations of their right to privacy, unlawful and unfair business practices, intrusion upon seclusion, and unjust enrichment from Ancestry selling Plaintiffs’ personal information.  Ancestry moved to dismiss the claims in the complaint on multiple grounds, but the Court only granted the motion to dismiss on two grounds (1) Plaintiffs lack standing to challenge its use of public data and (2) Ancestry is immune from liability under the Communications Decency Act. 47 U.S.C. § 230.

Standing is a heavily litigated issue in data privacy actions.  Many federal courts [link] have weighed in on the issue of what suffices for Article III standing in the context of data breach litigation.  In order to successfully plead standing, a plaintiff must show that she suffered an injury in fact, that is fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision.  Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1547 (2016).  Here, Plaintiffs alleged three injuries: (1) Ancestry exploits and profits from Plaintiffs’ likeness through its paid subscribers; (2) Plaintiffs’ lost potential earnings from the commercial use of their likeness; and (3) Plaintiffs suffered injury because Ancestry denied them of their right to control the distribution and use of their likeness.  Ancestry argued that none of these alleged injuries are enough to constitute an injury in fact.  The Court agreed.

The Court observed that the information in the Yearbook Database is not private because it is public yearbook information that Ancestry obtained.  Even then, the Court held that Plaintiffs needed to point to more than Ancestry using Plaintiffs’ public profiles to solicit subscribers; such as, an inference that the profiled persons personally endorsed Ancestry’s product (or an equivalent interest). The Court cited to precedent for the proposition that “a plaintiff must do more than point to the dollars in a defendant’s pocket; he must sufficiently allege that in the process he lost dollars of his own.”  Second, the Court found that Plaintiffs did not have a commercial interest in their public profiles or images that would preclude Ancestry from using their profiles for commercial gain.  Though a plaintiff need not be a celebrity to have a commercial interest in his or her likeness, district courts have held that certain individuals, such as models, have a commercial interest in their likeness.  Third, the Court noted that California’s statute for unauthorized commercial use of name or likeness only imposes liability where persons are injured as a result of the commercial use.  Cal. Civ. Code. § 3344(a).  Thus, a statutory violation by itself is not enough to impose liability or confer standing.

Next, the Court dismissed this action on an alternative ground, that Ancestry is immune from liability under the Communications Decency Act for two reasons.  47 U.S.C. § 230(c)(1).  Under the Act, (1) website operators generally are immune from liability for third-party content posted on their websites, but (2) they are not immune if they create or develop the information, in whole or in part.  Id. at §§ 230(c)(1) & (f)(3). F irst, Ancestry received the yearbook content from a third party, presumably other yearbook users.  Second, Ancestry alters the format of the photos by extracting yearbook data (such as names, photographs, and yearbook date), posting the content on its webpages and in its email solicitations, adding information, and inserting interactive buttons.  Thus, Ancestry’s taking and republishing yearbook photos in an altered format served as “a publisher’s traditional editorial functions [that] [ ] do not transform an individual into a content provider within the meaning of § 230.”

Ultimately, the Court dismissed Plaintiffs’ action with leave to amend.  Stay tuned to find out whether Plaintiffs refile their complaint in the Northern District of California.