Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: LinkedIn users’ claims over alleged spam emails dismissed, (Nov 17, 2014)

By Jody Coultas, J.D.

Professionals that subscribed to LinkedIn Corporation’s social network failed to state California right of publicity law claims against LinkedIn for sending emails to those professionals’ contacts using the professionals’ names and likenesses to personally endorse LinkedIn’s services, the federal district court in San Jose has held. The court granted LinkedIn’s motion to dismiss on the grounds of Communications Decency Act immunity, the First Amendment, and incidental use (Perkins v. LinkedIn Corp., November 13, 2014, Koh, L.).

LinkedIn collected email addresses from its members during the sign-up process for new users and “Add Connections” feature for existing users. The professionals alleged that LinkedIn harvested the email addresses of their contacts, as well as the email addresses of every person who has either emailed them, been emailed by them, or who has been carbon copied on an email to or from them. LinkedIn then allegedly sent an “initial invitation email”) to those harvested email addresses, purportedly on behalf of the LinkedIn user, inviting the recipient to join LinkedIn, as well as a second reminder email.

The professionals alleged that LinkIn’s email practices violated California’s common law right of publicity, California’s statutory right of publicity, and the California Unfair Competition Law.

Right of publicity. To state a right of publicity claim under California Civil Code Section 3344, a plaintiff must first allege the elements of the common law right: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Section 3344 also requires allegations of (5) a knowing use by the defendant; and (6) a direct connection between the alleged use and the commercial purpose.

The court dismissed the Section 3344 right of publicity claim for failure to state damages. The professionals requested minimum statutory damages of $750 per LinkedIn member. LinkedIn argued that because the damages were based solely on economic injury, the claim should be dismissed because Section 3344’s damages provision only applied to claims for mental harm. Although Section 3344 does not contain an express requirement that a plaintiff plead mental harm in order to claim the minimum statutory damages figure, but a California appellate court had inferred such a requirement from the statute’s legislative history. Minimum statutory damages are not meant to compensate for mere reputational harm; rather the award compensates for the effect any such reputational harm might have on one’s feelings or peace of mind.

The professionals were unable to show that pleading economic injury was sufficient to sustain a claim for statutory damages or that they had actually claimed mental anguish. The professionals plausibly alleged “reputational harm” arising out of LinkedIn’s sending of reminder emails, but failed to allege an injury to feelings.

The court granted leave to amend for the limited purpose of correcting the deficiencies to the Section 3344 claim.

Communications Decency Act. The Communications Decency Act (CDA) did not shelter LinkedIn from liability, according to the court. LinkedIn argued that the professionals’ claims were barred by the CDA. Specifically, LinkedIn claimed immunity under the CDA because users, not LinkedIn, were responsible for the “substantive content” of the reminder emails.

Section 230 of the CDA was enacted to protect websites from liability for material posted on the website by users. The reminder emails, which were allegedly sent by LinkedIn without consent and for the commercial benefit of LinkedIn, used the professionals’ names and likenesses as personalized endorsements for LinkedIn. LinkedIn argued that the professionals provided the substantive content of the initial invitation emails, and consented to those emails being sent, and merely republished the content provided by the professionals in the reminder emails. The court found that the mere fact that the professionals provided the information used in the initial invitation email did not confer blanket CDA immunity on LinkedIn for the alleged harm caused by LinkedIn’s unilateral decision to send subsequent reminder emails. The court was also not convinced that the reminder emails were substantively identical to the initial emails, or that LinkedIn only performed editorial functions.

First Amendment defense. The court denied LinkedIn’s motion to dismiss on First Amendment grounds. LinkedIn argued that the reminder emails “facilitate associations among people and therefore concern matters of public interest” and constituted noncommercial speech. However, it was clear that the reminder emails functioned as advertising for LinkedIn. The professionals also plausibly alleged that LinkedIn’s reminder emails were misleading commercial speech because the recipients of the reminder emails were misled into thinking the professionals were the ones who kept spamming the recipients’ inboxes with reminders to join LinkedIn. This caused an injury to the professionals’ reputation.

LinkedIn argued that even if the reminder emails were commercial speech, its use of the professionals’ names and likenesses was only actionable when the identity is used, without consent, to promote an unrelated product. The court noted that the professionals had alleged the emails were sent without consent, thereby negating LinkedIn’s argument.

LinkedIn also argued that even if the reminder emails were commercial speech, they were “protected by the First Amendment because reminders merely refer to and publicize connection invitations which are themselves protected activity under the First Amendment.” The professionals did not allege that the reminder emails advertised any work protectable under the First Amendment. Because there was no underlying protected work to which the advertisements here could be “adjunct” or “incidental,” LinkedIn’s argument was dismissed.

Incidental use. The court denied LinkedIn’s motion to dismiss the right of publicity claims on grounds of incidental use. The incidental use of a person’s name or likeness does not give rise to liability under a common law or statutory right of publicity claim. LinkedIn argued that the reminder emails were merely incidental to, and customary for the business of online networking. However, LinkedIn’s alleged use of the professionals’ names and likenesses was critical, not incidental, to LinkedIn’s commercial purpose.

The case is No. 13-CV-04303-LHK.

Attorneys: Larry C. Russ (Russ August & Kabat) for Paul Perkins. Jerome Cary Roth (Munger Tolles & Olson LLP) for LinkedIn Corp.

Companies: LinkedIn Corp.

Cases: Advertising CaliforniaNews