LinkedIn Still on Hook for Spamming Users’ Friends

     SAN JOSE, Calif. (CN) – A federal judge again thwarted LinkedIn’s bid to dismiss a class action by users who claim the professional networking site harvested their email addresses, contact lists and email history to serve its own commercial interests.
     Disgruntled users filed a federal class action against LinkedIn in September 2013, claiming it hacked into their external email accounts and then barraged their contacts with promotional spam.
     In its defense, LinkedIn suggested that the class members may have been simply “embarrassed” by the repeat invitations they authorized LinkedIn to send to their contacts.
     The plaintiffs, including several well-educated professionals, countered that “a few cryptic disclosures on a website” do not give LinkedIn the right to “harvest users’ email addresses and broadcast users’ persona to hundreds of people.”
     In June, U.S. District Judge Lucy Koh agreed with LinkedIn’s argument that the permission screens amounted to consent, as a reasonable user would have understood that the site was collecting email addresses from the user’s external email account.
     Koh threw LinkedIn another bone this week, finding in a 40-page ruling peppered with screenshots of LinkedIn’s sign-up process that the company also “clearly discloses” its intention to invite those email contacts to connect to the user via LinkedIn.
     But the judge added that the consent granted through permission screens ends with the first invitation and does not necessarily apply to follow-up “reminder emails” – the purported spam that class members say damaged their professional reputations.
     “Although the court concludes that plaintiffs have consented to LinkedIn’s initial endorsement email, the court finds that plaintiffs have plausibly alleged that they did not consent to the second and third reminder endorsement emails,” Koh wrote.
     LinkedIn had lobbied for a complete dismissal of class members’ second amended complaint filed this past August, and argued in the alternative to dismiss plaintiffs’ request for minimum statutory damages.
     Koh agreed that the request to award each member $750 for economic injury should be dismissed, since the users didn’t claim that they had been economically harmed.
     “Plaintiffs assert that they have in fact alleged ‘mental anguish'”, Koh wrote. “The court is not convinced. As defendant correctly points out, plaintiffs’ allegations of injury under California’s right of publicity statute focus solely on economic harm.”
     But LinkedIn’s immunity defense under the Communications Decency Act did not fare as well with Koh.
     “Plaintiffs allege that LinkedIn, without plaintiffs’ consent and for the commercial benefit of LinkedIn, sent reminder emails to thousands of recipients making use of plaintiffs’ names and likenesses as personalized endorsements for LinkedIn,” Koh wrote. “Plaintiffs allege further that LinkedIn was ‘solely responsible for the creation and development of each reminder email,’ and that each reminder email ‘was new, original, and unique content created and developed in whole or in part by LinkedIn.’ LinkedIn, plaintiffs say, generated the text, layout, and design of the reminder emails and sent them to hundreds if not thousands of recipients. Because, as plaintiffs allege, LinkedIn sent the reminder emails without Plaintiffs’ knowledge or consent, the text and layout of these emails were created by LinkedIn without any input from the user. Significantly, plaintiffs claim that LinkedIn provided no means by which a user could edit or otherwise select the language included in the reminder emails. True authorship of the reminder emails, plaintiffs allege, lay with LinkedIn.”
     Additionally, LinkedIn unilaterally chose to include users’ photographs in the second reminder emails, and plaintiffs “have plausibly alleged that LinkedIn was responsible at least ‘in part’ for ‘the creation or development of’ the reminder emails” and is not entitled to CDA immunity at this stage in the game, Koh said.
     Koh also rejected LinkedIn’s lengthy First Amendment defense, since the emails essentially functioned as advertising for the company – with logos and invitations to join – and therefore commercial speech.
     “Because plaintiffs have adequately alleged that LinkedIn’s reminder emails are not just commercial speech but misleading commercial speech that causes them injury, the First Amendment provides LinkedIn no refuge,” Koh wrote.
     She also rejected LinkedIn’s argument that using the plaintiffs’ names and photos was incidental and common in the online networking business.
     “LinkedIn’s alleged use of plaintiffs’ names and likenesses are critical, not incidental, to defendant’s commercial purposes,” Koh wrote, noting that even Facebook legendarily admitted that friend recommendations are “the Holy Grail of advertising.”
     Koh gave class members another 30 days to fix deficiencies in their second amended complaint.

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