Spokeo claims restriction of advertisements 'raises serious constitutional questions'

By Pam Wright | May 24, 2017

CHICAGO (Legal Newsline) – Spokeo has filed a motion to dismiss a civil rights class action lawsuit filed by an Illinois woman.

On April 20,, Spokeo Inc. of Pasadena, California, filed the motion with the U.S. District Court for the Northern District of Illinois, Eastern Division, claiming that plaintiff Nicole Vinci does not understand the Illinois Right of Publicity Act, under which she filed her lawsuit.

Vinci filed the complaint, individually and on behalf of others, in January in Cook County Circuit Court, alleging the company wrongly used peoples' names to advertise its page as a marketing ploy. The case was moved to the U.S. District Court for the Northern District of Illinois on Feb. 27. 

According to the complaint, Vinci said she sustained damages from having her name used in Spokeo advertisements, which she says encourages consumers to purchase personal information about her.

In its motion to dismiss, Spokeo says Vinci does not have the right to file the lawsuit under IRPA for a variety of reasons, including the Spokeo’s protection under the First Amendment, the fact that the information provided is already on the public domain and because Vinci “does not allege that an ordinary reasonable viewer would have understood Spokeo’s ad to refer to her.”

“'The purpose of the IRPA is to allow a person to control the commercial value of his or her identity,'” the motion noted. "...The ad’s reference to a name shared by dozens of individuals is simply too ambiguous to constitute an appropriation of plaintiff’s name.”

Spokeo further argued that its profile reports are fully protected speech, for two reasons. 

"First, a Spokeo profile does not propose a transaction and thus is not commercial speech. And second, the First Amendment bars claims based on the republication of documents in the public record,” the motion says. 

"An advertisement for such privileged activity is afforded the same protection as the product it promotes. Any restriction of Spokeo’s advertisements, therefore, raises serious constitutional questions, and faced with competing interpretations of IRPA, this court should adopt the one that avoids such a serious conflict. And ultimately, the First Amendment bars plaintiff’s proposed application of IRPA to Spokeo’s advertisements because IRPA is a content-based restriction that advances no compelling state interest here."

Spokeo added that its ads are entitled to full First Amendment protection because the profiles they advertise are noncommercial speech.

"Directories of names, addresses, phone numbers and other similar information are noncommercial speech entitled to full First Amendment protection,” according to the motion.

Spokeo also noted that the plaintiff wants to hold Spokeo liable under IRPA for the use of her name in online ads displayed in every state.

"Even if Illinois would impose liability for this conduct, many states would not; many states do not even recognize a right of publicity, and those that do often construe the right narrowly,” Spokeo attorneys argued. "The Commerce Clause precludes Illinois from overriding those states’ policy choices and applying IRPA to conduct and speech that occurs in those other states."

Finally, Spokeo argues that it is immune from liability under the Communication Decency Act because Vinci is barred from a section of the Communications Decency Act, which 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.”

“No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section,” the attorneys for Spokeo said in the motion to dismiss.

Vinci seeks trial by jury, injunctive relief, actual damages, statutory damages of $1,000 per violation, punitive damages, court costs, interest and all further relief the court grants. 

In its motion to dismiss, Spokeo asks the U.S. district court to dismiss the "complaint with prejudice and award Spokeo its reasonable attorney’s fees, costs, and expenses relating to this action."

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