Does a plaintiff have standing to sue for misappropriation of their name and image without their consent?
“Standing” refers to a court’s ability to rule on a lawsuit, and it has become one of the most important parts of a lawsuit. If the plaintiff has not established that the court has standing to hear a case, then the court will dismiss the case. To establish standing, a plaintiff must allege—among other things—that they have suffered a concrete injury because of the defendant’s conduct.
Two recent Supreme Court cases—Spokeo, Inc. v. Robins and TransUnion, LLC v. Ramirez—made it harder for plaintiffs to establish standing. In both cases, plaintiffs sued based on the Fair Credit Reporting Act (“FCRA”), but the Supreme Court ruled that the plaintiffs lacked standing because they did not allege concrete injuries, but instead mere procedural violations of FCRA. In other words, the Court said that while the defendants violated the law, their violation did not actually hurt the plaintiffs in any real way.
In TransUnion, the Court explained two broad categories of concrete injuries: tangible harms (such as physical and monetary), and intangible harms that include, among other things, “injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” The court listed examples of these harms: reputational harms and, importantly, privacy torts like disclosure of private information and intrusion upon seclusion.
Misappropriation of someone’s identity is one of the four foundational privacy torts that protect people’s privacy and dignity, along with disclosure of private information, intrusion upon seclusion, and painting someone in a false light. It was developed in the late 19th and early 20th centuries as people’s images and names were increasingly used without their consent to sell goods and services. It protects a person’s right of publicity, meaning their right to control how and when their personality is used to publicly sell goods and services. From the time the tort was theorized, it was understood to protect against multiple distinct harms. First and foremost, people understood it to protect against a privacy harm. Using someone’s image and name to advertise products without their consent harms a person’s individual rights, just like forcing someone to work without their consent (slavery) or to have sex without their consent (sexual assault) violates their dignity and individuality along with doing other mental or physical harm. The tort also protects against an economic harm that happens a person profits off of someone else’s name and image without their consent, and a mental harm when a person is distressed that their name and image is associated with a product that they do not endorse.
The plaintiff, Kim Martinez, alleged that the defendant, ZoomInfo Technologies, used her name and photograph without her consent to sells subscriptions to its services. ZoomInfo is a “people-search” website. Anybody can type a person’s name into the website’s search bar. The site then returns a certain amount of information about the person, such as their name, employer, photograph, etc. The site then prompts the user to subscribe to its services to get more information about that person and the millions of others of people about which the site has information. Ms. Martinez alleged that the site committed the tort of misappropriation by using her name and personal information without her consent to sell subscriptions. She alleged that this violated her privacy right, deprived her of the economic value of her identity, and caused her emotional harms such as distress and anxiety. On appeal, ZoomInfo argues that Ms. Martinez has failed to establish standing because she has not sufficiently alleged that ZoomInfo harmed her. It claims that plaintiffs cannot establish standing by alleging that defendants’ misappropriation of their identity violated their privacy rights. It also claims that Ms. Martinez’s claims about economic harm are insufficient because she has not established a specific dollar valuation of her identity, and that her claims that the misappropriation distressed her have no proof.
EPIC filed an amicus brief alongside Public Justice arguing that plaintiffs who allege that the defendant violated their right of publicity have sufficiently alleged a concrete intangible injury that establishes standing. EPIC described the history of the tort, showing that it is traditionally recognized as providing a basis for lawsuits in American courts. EPIC also described how the tort came out of the same background as the other four privacy torts, two of which the Supreme Court provided as examples of injuries that establish standing.