599 F.Supp.3d 877
N.D. Cal.2022Background
- Spokeo operates a people-search website that displays “teaser” profiles (names, partial contact/address data, sometimes photos) that state Spokeo has additional information (criminal records, court records, etc.) and that a paid subscription unlocks the full profile.
- Named plaintiffs (Kellman—CA, Fry—IN, Newell—OH) allege Spokeo used their names/likenesses in teasers to promote subscriptions without consent; none subscribed and each alleges reputational and emotional harm and unjust enrichment by Spokeo.
- Plaintiffs assert statewide and common-law claims: California § 3344 (right of publicity), California common-law appropriation, Indiana and Ohio right-of-publicity and appropriation claims, and California UCL (unfair prong).
- Spokeo moved to dismiss on multiple grounds: lack of Article III standing; failure to state claims (including lack of commercial value, newsworthiness, incidental-use defenses, territoriality); First Amendment protection; dormant Commerce Clause; and Section 230 CDA immunity.
- The court denied the motion in full: held plaintiffs have Article III standing; claims are plausibly pleaded (commercial value and commercial purpose alleged; news/public-interest exceptions discretionary); CDA §230 does not bar claims; dormant Commerce Clause and First Amendment defenses fail at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Plaintiffs allege concrete injuries: misappropriation of names/likenesses, unjust enrichment, loss of control over commercial use, and emotional harm | Spokeo: no concrete, particularized injury—plaintiffs are non-celebrities and suffered only non-cognizable harms | Court: plaintiffs plead historically cognizable privacy/publicity harms (economic and intangible); standing sustains the suit |
| Adequacy of state-law publicity/appropriation claims | Plaintiffs: teasers show commercial use and imply value; allegations satisfy commercial-value, commercial-purpose, and non-newsworthiness elements | Spokeo: personas lack commercial value; teasers are promotional parts of the product (not used for a separate commercial purpose); newsworthiness/public-interest exceptions apply; incidental-use defense | Court: allegations suffice at pleading stage—commercial value and purpose plausibly pleaded; news/public-interest and incidental defenses not resolved on pleadings; territoriality (IN) deferred to discovery |
| UCL (California) | Plaintiffs: UCL unlawful/unfair prong claims tethered to right-of-publicity violations and allege economic injury (unjust enrichment) | Spokeo: plaintiffs lack UCL standing; CCPA immunizes conduct; Sonner bars equitable restitution; no unfairness pleaded | Court: plaintiffs allege economic injury and statutory tether; CCPA does not immunize tort/UCL claims; pleading stage adequate; Sonner does not defeat pleading of equitable relief now |
| CDA §230 immunity | Plaintiffs: Spokeo created/curated profiles (not user-generated) and is thus an information content provider for teasers | Spokeo: its site is an interactive service and teasers are publisher actions immune under §230(c)(1) | Court: pleadings allege Spokeo created/assembled content and therefore §230 immunity is not clearly applicable at this stage |
| Dormant Commerce Clause | Plaintiffs: state publicity laws protect local residents’ rights; application is a routine state regulation | Spokeo: applying multiple states’ publicity laws to its online service unduly burdens interstate commerce | Court: statutes do not discriminate against or clearly excessively burden interstate commerce; dormant Commerce Clause challenge fails on pleadings |
| First Amendment | Plaintiffs: teasers are commercial, potentially misleading ads; state publicity laws are tailored and contain news/public-interest exceptions | Spokeo: teasers are protected expressive speech; regulation fails First Amendment scrutiny | Court: teasers are commercial speech (ads); if misleading get no protection; even if not misleading, laws survive intermediate scrutiny and do not violate the First Amendment at pleading stage |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375 (1994) (party invoking federal jurisdiction bears burden to show jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (concrete injuries assessed by historical common-law analogues)
- In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 (9th Cir. 2020) (privacy violations and collection of private data can confer standing)
- Miller v. Collectors Universe, Inc., 159 Cal. App. 4th 988 (Cal. Ct. App. 2008) (privacy tort protects mental peace and feelings distinct from defamation)
- Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (right of publicity and First Amendment limits)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (§230 immunity excludes parties responsible for creation or development of content)
- Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) (broad discussion of CDA immunity principles)
- Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093 (9th Cir. 2019) (§230 immunity analytical framework)
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech)
- Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60 (1983) (distinguishing commercial from noncommercial speech)
- Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020) (requirements for equitable restitution under the UCL)
- Healy v. Beer Inst., Inc., 491 U.S. 324 (1989) (dormant Commerce Clause principles)