A putative class action alleging that LinkedIn Corp. violated their right of publicity by sending reminder emails to users’ contacts without their permission will move forward, the U.S. District Court for the Northern District of California recently ruled.

Plaintiffs in this case are seeking to represent a class of LinkedIn users who used an email address when signing up for a LinkedIn account. Plaintiffs brought a putative class action suit last September against the social media site, alleging it had harvested their email addresses during the sign-up process.

During that process, new users are given the option to allow LinkedIn to search their email contact list for individuals who are not already on LinkedIn. They are given next the option to choose whether or not to invite their contacts to connect with them on LinkedIn. If they do, the site sends an invitation to connect. These messages come from the user’s name via LinkedIn and contain the following text: “I’d like to add you to my professional network . . . .” This text is followed by a signature line that contains the LinkedIn user’s name. Two more messages are sent if the contact does not sign up. Plaintiffs refer to these messages as “endorsement emails,” because they are made to look, according to plaintiffs, as if they have been sent by the user and as if the user endorses LinkedIn.

Plaintiffs alleged the use of their names and likenesses to personally endorse LinkedIn’s services for the site’s commercial benefit violated California’s common law and statutory rights of publicity as well as the state’s unfair competition law, according to the complaint.

Back in June of this year, U.S. District Court Judge Lucy H. Koh granted in part and denied in part LinkedIn’s motion to dismiss the case. Koh dismissed the plaintiffs’ federal claims against LinkedIn under the Stored Communications Act, 18 U.S.C. § 2701, and Wiretap Act, 18 U.S.C. § 2511. She also held that the plaintiffs consented to the initial invitation emails, narrowing the case to whether the reminder emails were unlawful.

LinkedIn moved to dismiss plaintiffs’ amended complaint in September, which the court granted in part and denied in part. Plaintiffs alleged in the amended complaint that LinkedIn violated California’s common law and statutory right of publicity, Cal. Civil Code § 3344, and the unlawful prong of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, based on abridging plaintiffs’ common law right of publicity.

While Koh agreed with the defendant that the statutory publicity rights claim should be dismissed, she allowed the suit to move forward on the plaintiffs’ other claims. The court dismissed plaintiffs’ statutory right of publicity claim because the plaintiffs failed to plead mental harm, which it said was required when requesting the minimum statutory damages figure of $750. The court said the plaintiffs alleged only economic harm as a result of the reminder emails. Although the California law doesn’t explicitly require plaintiffs to plead mental harm, the court said that Miller v. Collectors Universe Inc., 159 Cal. App. 4th 988 (Cal. Ct. App. 2008), held the requirement should be inferred based on a reading of the statute’s legislative history. Quoting Miller, the court said the statutory minimum damages were meant “to compensate non-celebrity plaintiffs” who suffer “mental anguish yet no discernible commercial loss.” The court did, however, grant plaintiffs leave to amend their complaint regarding their statutory right of publicity claim.

LinkedIn’s other defenses proved unavailing. LinkedIn argued that the plaintiffs’ case should be dismissed because its reminder emails were protected by the First Amendment and the Communications Decency Act, 47 U.S.C. § 230. The court rejected both claims. Section 230 of the Communications Decency Act, which provides immunity to providers of interactive computer services against liability from content created by third parties, does not apply to the creation of content by a Web Site, the court explained. The court said plaintiffs plausibly alleged that LinkedIn’s reminder emails were advertisements for the professional social networking site. The court added that it agreed with plaintiffs’ use of Facebook Chief Executive Officer Mark Zuckerberg’s quote from Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), that a trusted referral “influences people more than the best broadcast message” and that a “trusted referral is the Holy Grail of advertising.” The “true authorship” of the messages lies with the defendant: the text, layout, and design of the emails were generated by the site and then transmitted to thousands of recipients by the defendant, without the plaintiffs’ knowledge or consent. Even though the plaintiffs arguably consented to the use of their information for the initial message, that was not enough to protect the defendant. Thus the messages themselves constituted commercial speech and functioned as advertisements for LinkedIn, the court said, receiving less First Amendment protection and possibly none at all, given that plaintiffs “plausibly alleged that LinkedIn’s reminder emails are misleading commercial speech, for which the First Amendment provides no protection.”

Finally, Judge Koh rejected the defendant’s argument that its use of the plaintiffs’ names and likenesses was incidental and therefore did not give rise to liability. “Plaintiffs here have sufficiently alleged that LinkedIn’s reminder emails serve as personalized endorsements for LinkedIn’s services,” she wrote, and provided meaningful value to the site because they made use of plaintiffs’ names and likenesses to help grow the membership of LinkedIn virally.

To read the order in Perkins v. LinkedIn Corp., click here.

Why it matters: Although the court sided with LinkedIn and dismissed the plaintiffs’ statutory right of publicity claim, it granted the putative class leave to amend and refile the claim where plaintiffs can now allege they suffered mental anguish. While LinkedIn had initial success in an earlier ruling from the court dismissing claims based on the Wiretap Act and the Stored Communications Act and holding that the plaintiffs consented to the initial invitation email, the case continues with regard to the reminder emails sent by LinkedIn on the common law publicity rights claim and under California’s unfair competition statute.

Although LinkedIn has had some success in whittling down the lawsuit, the court’s recent order seems to indicate that there may be a good claim alleged by plaintiffs based on violation of a user’s right of publicity. It would seem easy for plaintiffs to be able to amend the complaint to allege that they suffered emotional harm as a result of seeing their network reputation suffer, and the court even alludes to the fact that emotional injury that results from reputational harm is sufficient. With that said, the right of publicity continues to be an area where brands and companies can get themselves into significant legal trouble.

Just as we have seen with respect to similar claims made in previous sponsored stories lawsuits involving other social media sites that have resulted in settlements, we will likely see LinkedIn take a similar path and settle this lawsuit. Even though we don’t yet have a definitive ruling, there are still key takeaways from LinkedIn’s right of publicity troubles:

  • Social media users, even if not celebrities, may have an actionable right of publicity associated with marketing or promotions that link them to the advertiser without proper consent.
  • Though their injury may not be as great as that of a celebrity who is in the business of selling endorsements, social media users may be able to establish some economic value to linking them to advertisers. In Perkins, using plaintiffs' names and likenesses was found to provide meaningful value to LinkedIn because it helped grow the membership of LinkedIn virally. In other similar lawsuits, plaintiffs have been able to point to linking user names and likenesses to advertising resulted in higher advertising rates.
  • As a result, not only might such a misappropriation support a right of publicity claim, it may also support an unfair competition claim. These decisions are likely to attract further claims by class action lawyers for other promotional campaigns that associate users or customers with advertising.
  • Social media and Web site providers should be careful to avoid notice and consent issues, including allegations of changed terms and insufficient notice to users.
  • Immunity afforded by the Communications Decency Act is limited. Outside of the Ninth Circuit, some courts still include rights of publicity as intellectual property claims excluded from the immunity.
  • Advertisers relying on third-party platforms to obtain consent are particularly at risk, as they are not in privity of contract even if the platform obtains consent.