name alone doesn't ID average people in internet search ROP case, court rules

Dobrowolski v. Intelius, Inc., No. 17 CV 1406, 2017 WL 3720170 (N.D. Ill. Aug. 29, 2017)

Defendants sell online reports on people using information compiled from public records and other sources.  When a consumer uses a search engine to search a person’s first and last names, dynamic keyword ads appear, with the first and last name automatically plugged into an otherwise generic ad.  The ads “give the appearance that the reports contain valuable information about the searched-for person, such as arrest records, background check, phone number, and address.” Plaintiffs sued Intelius and other entities under the Illinois Right of Publicity Act for this advertising; Intelius got out for lack of personal jurisdiction but the others got out on a motion to dismiss on the merits.

The Illinois Right of Publicity Act prohibits the use of “an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person.” IRPA defines “identity” as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.”  Defendants argued that they didn’t use plaintiffs’ “identities” because the ads only reflect the coincidental result of a third-party’s internet search for their names, without any additional information to identify one “Anna Dobrowolski” or “Nicole Vinci” over another. Even though IRPA specifically uses “name,” that’s in the context of identifying a particular individual; a name alone isn’t necessarily sufficient to identify an individual, since many people have the same name. The use at issue must serve “to identify that individual to a reasonable audience.”

Plaintiffs argued that defendants designed their ads to make a person searching the internet for “Nicole Vinci” or “Anna Dobrowolski” believe that the defendants had located the plaintiffs and had information on them. But that wasn’t enough.  Though a plaintiff need not allege facts sufficient to show that she was identified to the exclusion of all other persons bearing their name or likeness, she must still allege facts to plausibly infer that she was identified to a reasonable audience by the defendant’s use. Without any additional context, “Anna Dobrowolski” or “Nicole Vinci” didn’t identify the plaintiffs. The complaints do not suggest that the ads identify the plaintiffs in any manner except for name. The fact that the defendants benefited from designing their ads in the way they did still didn’t mean they identified the plaintiffs in particular.

To deal with a possible amended complaint, the court also addressed defendants’ arguments that because the names “Anna Dobrowolski” and “Nicole Vinci” were automatically populated into defendants’ generic ads as the result of a third-party’s search, the plaintiffs could not show that the defendants intended to appropriate the names “Anna Dobrowolski” and “Nicole Vinci.” But the requisite intent is simply “to use the material about the plaintiff for trade purposes”; the defendants’ intent to use full names in their otherwise generic ads was enough.

Defendants also argued that a ROP claim required the plaintiff’s identity to have intrinsic or commercial value before the defendant’s use. Though some pre-IRPA case law required this, IRPA did not—it’s about each individual’s “right to control and to choose whether and how to use [their] identity for commercial purposes” and isn’t limited to protecting celebrities or public figures.  [Query, as usual, how this is at all compatible with the First Amendment in the absence of falsity/misleadingness.]

Nor did an IRPA claim require an apparent endorsement. Even if ads stating “Anna Dobrowolski Located” or “We Found Nicole Vinci” don’t suggest to a reasonable viewer that Anna Dobrowolski or Nicole Vinci endorse defendants’ products, IRPA doesn’t require that the defendant’s commercial purpose be an apparent endorsement. “IRPA’s definition of ‘commercial purpose’ is broad, and the act contains no endorsement requirement. Neither does IRPA have a falsity requirement.”  Which is why it’s unconstitutional, especially as applied to services like this one.