The Business Litigation Blog

LinkedIn, Linked Out

Last week we wrote a brief post announcing a lawsuit against the businessman’s Facebook, LinkedIn. Today we will go further in depth as to the first three questions raised in the complaint as well as arguments the plaintiffs might decide to make in pursuance of their claims.

It appears that LinkedIn, the businessman’s Facebook, has run into the same type of privacy concerns as that social media giant, as a recently filed class action lawsuit against LinkedIn accuses the company of hacking into email accounts of members and harvesting email addresses for the use of inviting associates of their members to join LinkedIn as well, whether the current members wish it or not.

LinkedIn’s technique for getting these email addresses, according to the complaint, is that each new member is required to disclose their email address to join up with LinkedIn, who then uses this information to gain access to those email accounts, harvest the email address books found in those accounts, and then send invitation emails to said accounts, often in the name of the user they took the email lists from in the first place. For obvious reasons, the plaintiffs found this practice objectionable, and filed suit as a result.

The first count filed was under California’s common law Right of Publicity, which prevents the unauthorized use of another’s likeness for commercial gain. In this case, there obviously was commercial gain on the part of LinkedIn, whose profits are directly tied to the number of members signed up for the site. The question for this claim is whether or not the use of the users’ likenesses were authorized. Ultimately, it is a near certainty that the terms of service had at least some provision that allowed this data-mining, as terms of service are often quite expansive, and the plaintiffs may find it difficult to prevail on this claim depending on how exactly the terms of service were written.

The second count accuses LinkedIn of violating a number of California state laws regarding the use of computer data, claiming that LinkedIn’s conduct was “fraudulent”, “unfair” and “unlawful”. Of course, it can be quite difficult to prove fraud, and the plaintiffs ‘claims that LinkedIn “knowingly misrepresent[ed]” its services to its users in order to gain access to their email address lists is going is a high burden to prove. Once again, it seems like that this count will live or die by the terms of service.

The third count alleges that LinkedIn violated federal statutes that deal with unauthorized access to electronic information. Essentially, the plaintiffs are accusing LinkedIn of gaining access to their email accounts without permission, and then using that access to further their own commercial interests. While it seems that there is not much dispute that LinkedIn did access that information, it seems unlikely that they would brazenly violate the law in such a manner, and there, once again, is likely some provision in their terms of service that allowed for them to do such. The interpretation of that provision is what will likely be the dispositive factor for this count. Our next post will go over the final three questions raised in the complaint.

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