Comments on Doe v. IMDB Privacy Lawsuit

[Post by Venkat Balasubramani]

Doe v., Inc. and, Inc., 11-cv-1709 (W.D. Wash.; Oct. 13, 2011)

An actress who goes by a stage name sued IMDB and Amazon for disclosing her birthdate, which IMDB allegedly obtained through the payment process. The allegations of the lawsuit are straightforward. Doe is an actress who “has a given legal name that is extremely difficult for Americans to spell and pronounce.” [Definite sympathy points from me on that score.] As a result, she adopted a stage name. She listed herself on IMDB, which, apart from being a widely used information source for movie trivia, is also an industry resource. She did not list her age on her IMDB profile. She signed up for “IMDB pro,” and in the process IMDB charged her credit card. Doe alleges that IMDB associated her birthdate, and listed this information on her IMDB profile. Noting that “in the entertainment industry, youth is king,” Doe alleges that disclosure of her birthdate by IMDB harmed her. She requested IMDB to remove her birthdate, and apparently IMDB refused. She sued.

A few observations about the complaint:

You may or may not quibble with the extent of Doe’s damages, but unlike other privacy lawsuits where harm is speculative, Doe has a much better chance at getting over any damages hurdles. There is definitely no standing issue here, and the lawsuit will not be kicked on the basis of standing.

Unlike the privacy class actions which usually allege violations of federal law, Doe alleges violations of state law. There are no federal causes of action in the complaint. This is obviously a strategic decision and in part could have been made to avoid the statutory hoops that a plaintiff alleging causes of action under federal statutes have to jump through. There’s a possible preemption argument lurking in the background, but there’s not much precedent and tough to say whether defendants will raise the argument and whether it will get any traction.

The biggest threat to IMDB may not be the prospect of damages, although that’s surely lurking in the background. What could end up being a fiasco is discovery. Doe’s complaint implies that IMDB had some sort of system where it matched information obtained during the payment process with information in its public database. It’s a good bet that IMDB (and Amazon) does not want this process to become public, but this is sure to be one of the key aspects of the discovery sought by Doe. A follow up question is whether there is any additional information sharing going on (e.g., between IMDB and Amazon). This is also something that Amazon probably wants to keep under wraps.

PogoWasRight takes a look at IMDB’s privacy policy: “Aspiring actress sues IMDB and Amazon for revealing her true age and for misusing her credit card details to obtain it.” Unfortunately for IMDB, the privacy policy does not clearly insulate its actions here. On the other hand, the privacy policy does not say anything about information such as an IMDB pro user’s birthdate. Doe has a reasonable chance at pointing to IMDB’s extra-contractual statements and statements in the subscriber agreement itself, and arguing that these constitute promises or assurances.

IMDB was previously sued on a similar theory. (“Actress Blames Fear of Fan Attacks on Web Site.”) That plaintiff did not have much success, but we’ll see what happens with Doe.

Additional coverage:

Eriq Gardner (THR): Actress Sues IMDb for $1 Million for Revealing Her Age

PogoWasRight: “Aspiring actress sues IMDB and Amazon for revealing her true age and for misusing her credit card details to obtain it

Seattle Weekly: Mystery Actress Files Lawsuit Against IMDb for Revealing Her ‘True Age and Name’ (offering to “buy beers for anyone who can figure . . . out [the identity of the actress]”)

GeekWire: Texas actress sues Amazon for displaying age in IMDb listing