IP Law Daily Illinois publicity rights suit based on Instagram usernames cannot proceed as class action
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Thursday, December 19, 2019

Illinois publicity rights suit based on Instagram usernames cannot proceed as class action

By Cheryl Beise, J.D.

The identity of Instagram usernames cannot be resolved categorically for purposes of qualifying a class of plaintiffs under the Illinois Right of Publicity Act.

The federal district court in Chicago correctly determined that an individual who claimed that online marketplace Groupon violated her rights under the Illinois Right of Publicity Act by publishing her Instagram user name and associated photograph without permission could not pursue her case as a class action because she failed to meet the Federal Rule 23(b) requirement that common questions of fact predominate over individual ones, the U.S. Court of Appeals in Chicago has held. The relevant statute would mandate a "username-by-username (photo-by-photo)" inquiry, requiring each Instagram username to submit individualized proof to state a claim. The district court’s order denying class certification was affirmed (Dancel v. Groupon, Inc., December 18, 2019, St. Eve, A.).

Groupon, Inc. is an online marketplace that sells vouchers for other businesses. Groupon’s website gives each business its own page with information about the business and the discounts available. Between April 2015 and February 2016, some visitors to the site could scroll down each page to see a "Photos" section that displayed up to nine pictures. If the visitor clicked a button, the page would reveal up to 18 more images. Groupon collected and displayed these pictures automatically using what it calls the "Instagram Widget." The Widget pulled publicly available pictures from the social networking service Instagram.

Christine Dancel has an Instagram account and her user name is "meowchristine." In 2015, Dancel uploaded to her account a picture of herself and her boyfriend visiting Philly G’s, a restaurant in Vernon Hills, Illinois. This picture was one of several Groupon displayed on Philly G’s page while the Widget was active.

Dancel alleged that Groupon’s inclusion of her photo and username on Philly G’s page violated the Illinois Right of Publicity Act (IRPA), which prohibits the use of a person’s identity for commercial purposes without consent. Dancel filed suit in the Circuit Court of Cook County and sought to maintain the action on behalf of a class of "Illinois residents." Dancel later moved to certify a different class, defined as "[a]ll persons who maintained an Instagram Account and whose photograph (or photographs) from such account was (or were) acquired and used on a groupon.com webpage for an Illinois business," and a subclass consisting of "all members of the Instagram Class" whose likeness appeared in any photograph acquired and used by Groupon. Groupon successfully removed the case to federal court.

The district court analyzed Dancel’s proposed class under Federal Rule of Civil Procedure 23(b)(3). Among other things, Rule 23(b)(3) requires "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Dancel identified the common question that united the class as "whether Instagram usernames categorically fall within the statutory definition of ‘identity.’" She distinguished this inquiry from the individualized question "whether any particular username identifies an individual." Although the district court accepted that a common question existed as to whether any username identifies an individual, that question was not enough to certify a class because it "ignore[d] the individual inquiry that is the essence of determining ‘identity’ under the IRPA." Because the court determined that the IRPA, as applied to the facts of this case, required a "username-by-username (photo-by-photo)" inquiry, the court found that common questions would not predominate over individual ones and denied certification. Dancel appealed.

Federal jurisdiction. The Seventh Circuit previously had remanded this case for the district court to address an unresolved issue of personal jurisdiction. On remand, Groupon established that federal diversity jurisdiction was appropriate because at least two class members were citizens of states other than Illinois.

Class certification. Dancel argued that the district court improperly addressed the merits of her IRPA claim at the class-certification stage. She contended that the individual content of each username was irrelevant to the class’s claims.

Federal Rule of Civil Procedure 23(b)(3) requires a district court to find that "the questions of law or fact common to class members predominate over any questions affecting only individual members." In resolving whether a common question exists or predominates, the Supreme Court has emphasized that courts may not "engage in free-ranging merits inquiries at the certification stage." Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). Nevertheless, Rule 23 is more than "a mere pleading standard," and the court must satisfy itself with a "rigorous analysis" that the prerequisites of certification are met, even if that analysis has "some overlap with the merits of the plaintiff’s underlying claim." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011).

The parties agreed that the IRPA’s identity element is like materiality in that it, too, is an objective-inquiry—it asks whether an attribute would identify a plaintiff to the "ordinary, reasonable viewer or listener." 765 ILCS 1075/5.

The Seventh Circuit went one step further, explaining that the issue regarding whether usernames are categorically identities under the IRPA matters not only for the merits but also for commonality under Rule 23. In other words, must identity be proven through "evidence that varies from member to member" (the username’s content) or can "the same evidence" (the fact of being a username) suffice for each member to make a prima facie showing? "This is not a question that can be saved for after certification; it is precisely the question the court must answer at certification," the court said. To find otherwise would reduce Rule 23 class certification to a mere pleading standard.

The Seventh Circuit noted that "Dancel is trying to define the concept of identity in a common way so that it covers up individual questions that each class member might raise." In this case, the court identified the key question as: "Would facts common to all Instagram usernames (i.e., their innate uniqueness) suffice, or would a plaintiff need to show something more, something about her username, to meet her initial burden?" While this question overlapped with the merits of the underlying claim, the district court was correct to decide it before certifying a class, the court opined.

IRPA claim elements. The appeals court next considered the substantive elements of an IRPA claim. The IRPA prohibits "us[ing] an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person." 765 ILCS 1075/30(a). A plaintiff must thus prove (1) the appropriation of one’s identity, (2) without one’s consent, (3) for another’s commercial benefit. The 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." 765 ILCS 1075/5. Name, in turn, "means the actual name or other name by which an individual is known that is intended to identify that individual." Id.

Dancel argued that all Instagram usernames are names or identities under the IRPA because an ordinary, reasonable viewer would know that a username is intended to identify a unique user. Dancel also argued that user names, like email addresses under the federal Driver’s Privacy Protection Act, qualify as identifying personal information. The court disagreed. First, the case cited by Dancel cut against her argument. In United States v. Hastie, 854 F.3d 1298 (11th Cir. 2017), the Eleventh Circuit did not hold that email addresses categorically identify an individual, but on that that they often did so because of their content.

"A username’s content, and not its nature, is likewise necessary to decide whether it is an identity under the IRPA," the Seventh Circuit said. Instagram usernames identify only Instagram accounts, not individuals. The IRPA, however, demands that an attribute, even a name, serve to identify the specific individual whose identity is being appropriated. The common evidence that Dancel proposed to provide—that usernames are unique, the Instagram Widget collected usernames, and Groupon’s deal pages delivered those usernames to visitors—did not answer the question whether any given username identifies a specific individual who is behind that username and its associated account, the court observed.

In sum, Dancel’s proposed common evidence "cannot develop, for each class member, a common prima facie case under the identity element of an IRPA claim," the court determined. While a plaintiff need not show that her identity has commercial value to pursue a claim, she is still required to show that it is her identity and that the defendant appropriated it. Each Instagram username would require individualized proof to state a claim under the IRPA. "This individualized evidentiary burden prevents identity from being a predominating common question under Rule 23(b)(3)," the court said. The appeals court accordingly affirmed the district court’s order denying class certification.

The case is No. 19-1831.

Attorneys: Ryan D. Andrews (Edelson PC) for Christine Dancel. Brian Eliot Cohen (Novack & Macey LLP) for Groupon, Inc.

Companies: Groupon, Inc.

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