Claim That LinkedIn Harvested E-Mails, Sent Reminders Without Consent May Proceed

Nov. 14 — A putative class action alleging that LinkedIn Corp. harmed users' professional reputations by sending e-mails to almost anyone with whom new users had interacted via their e-mail account may proceed in part, the U.S. District Court for the Northern District of California ruled Nov. 13.

The case centered around e-mails from LinkedIn, a professional social networking site with over 200 million users, inviting nonusers to join. According to the plaintiffs, during the sign-up process, LinkedIn “harvested the email addresses of Plaintiffs' contacts as well as the email addresses of every person who has either emailed Plaintiffs, been emailed by Plaintiffs, or who has been carbon copied on an email to or from Plaintiffs.”

LinkedIn then sent an e-mail inviting the recipient to join, the plaintiffs said, and it followed up with two reminder e-mails if the invitee didn't join the site. The plaintiffs alleged that these e-mails were sent without their knowledge or consent. They added that LinkedIn wasn't responsive to users who asked the site not send the reminder e-mails and lacked a reasonable mechanism to cancel them.

The plaintiffs added that LinkedIn sent the reminder e-mails, which included their names and likenesses, for its commercial benefit because the site's revenue is “directly related to the number of registered LinkedIn users.”

In June, Judge Lucy H. Koh granted in part and denied in part LinkedIn Corp.'s motion to dismiss the case (see related article). 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 e-mails, narrowing the case to whether the reminder e-mails 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.

Mental Harm Not Alleged

The court dismissed plaintiffs' statutory right of publicity claim because they failed to plead mental harm, which it said was required when requesting the minimum statutory damages figure of $750. It said the plaintiffs only alleged economic harm as a result of the reminder e-mails.

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. The court said it should defer to the intermediate appellate court's interpretation of the California statute unless there was “convincing evidence” that the California Supreme Court would reject the interpretation.

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.

No First Amendment, CDA Immunity

LinkedIn argued that the plaintiffs' case should be dismissed because its reminder e-mails were protected by the First Amendment and the Communications Decency Act, 47 U.S.C. § 230. The court rejected both claims.

The court said plaintiffs plausibly alleged that LinkedIn's reminder e-mails 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 court therefore disagreed with LinkedIn that the reminder e-mails were addressing matters of public interest or noncommercial speech subject to the First Amendment's full protection.

The court wrote that the plaintiffs plausibly alleged that LinkedIn's reminder e-mails were “misleading commercial speech, for which the First Amendment provides no protection.”

The court also denied LinkedIn immunity under the CDA. The CDA provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

CDA immunity, the court said, didn't apply in this case because the plaintiffs plausibly alleged that LinkedIn wrote, designed and formatted the reminder e-mails. LinkedIn can't claim CDA immunity where it was a creator or co-creator of the e-mails, the court ruled, as opposed to the publisher of content provided by a third party.

LinkedIn also argued that the suit shouldn't proceed because there was only “incidental use” of the plaintiffs' names and likenesses. The court disagreed, saying LinkedIn valued the reminder e-mails “precisely because they make use of Plaintiffs' names and likenesses.”

Russ August & Kabat and Lieff Cabraser Heimann Bernstein LLP represented the plaintiffs. Munger Tolles & Olson LLP represented LinkedIn.