September 20, 2020

LinkedIn defends use of member photos in marketing emails


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Linkedin-Article-201402072001By Ross Todd, From The Recorder

SAN FRANCISCO ­— Lawyers for LinkedIn Corp. have renewed their effort to knock out a lawsuit claiming the company pestered users’ contacts with spam-like invitations to join the professional networking site.

The lawsuit, originally filed in September 2013, accused the company of harvesting email addresses from users’ contact lists and using them to send repeated invitations to join a user’s LinkedIn network. Plaintiffs claim that the invitations, which include information and images users shared as part of their LinkedIn profiles, appear as if they were sent by users themselves rather than the company.

In a motion to dismiss filed last week, lawyers at Munger, Tolles & Olson defend the company’s use of members’ names and photographs as incidental and customary in online networking. The lawyers also assert for the first time that plaintiffs’ claims are barred by both the Communications Decency Act and the First Amendment.

In June, U.S. District Judge Lucy Koh in San Jose refused to wipe out the lawsuit after LinkedIn’s first motion to dismiss. She found the repeated emails could harm users’ reputations by making them seem like “the types of people who spam their contacts or are unable to take the hint that their contacts do not want to join their LinkedIn network.”

Koh allowed the plaintiffs’ common-law, right-of-publicity claims to move forward along with a claim under California’s Unfair Competition Law. Koh, however, dismissed claims brought under the Stored Communications Act and the Wiretap Act, finding that the plaintiffs had given LinkedIn consent to access their email contacts when signing up for the invitation service.

Since Koh’s decision in June, additional counsel at Lieff Cabraser Heimann & Bernstein have appeared on the docket for the plaintiffs. Alongside original counsel at Russ August & Kabat, Lieff Cabraser’s Michael Sobol filed a second amended complaint in August. The latest complaint adds a claim that LinkedIn violated California’s right-of-publicity statute by using the plaintiffs’ names and photographs in the invitations. According to the complaint, that claim carries statutory damages of $750 per LinkedIn user.

LinkedIn’s lawyers at Munger Tolles fired back Thursday with a motion to dismiss the second amended complaint. In it, they argue that the plaintiffs’ new claim for statutory damages should be tossed because the alleged injuries are based on economic harm, not mental harm. “The California Court of Appeal has held that the statutory damages provision applies only to claims based on mental harm,” they write.

LinkedIn’s lawyers also argue that the plaintiffs’ claims run afoul of the Communications Decency Act and the First Amendment. As an interactive computer service, they maintain, LinkedIn is protected from claims stemming from content provided by users. LinkedIn’s lawyers argue that the invitations fall under the CDA since users create the content ultimately used in them.

LinkedIn further argues that its reminders are protected under the First Amendment. “Reminders promote the First Amendment rights of free speech and association and, therefore, concern matters of public interest,” they write. The Munger Tolles lawyers maintain that even if the reminders are commercial speech, the use of member names and likenesses in them amounts to an incidental use subject to First Amendment protection.

Lieff Cabraser’s Sobol and Larry Russ of Russ August didn’t immediately respond to calls for comment.

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