April 9th, 2015
LinkedIn not linked to First Amendment
By: Diwaagar Radhakrishnan Sitaraman
This blog is a discussion on the decision of the US District Court for the Northern District of California in the case of Perkins v. LinkedIn Corp. [2014 U.S. Dist. LEXIS 160381].
Facts:
LinkedIn is a famous social networking website. This is dedicated for professional networking and has over 200 million users. The members maintain a profile similar to their resume and connect with other users by creating “connections”. LinkedIn earns revenue through three types of services viz. “Talent Solutions”, “Marketing Solutions” and “Premium Subscriptions”. The revenue of LinkedIn is directly proportional to the number of its users.
The plaintiffs are nine professional and claim to be representing class of LinkedIn users. They allege that LinkedIn collects email-ids of its users’ contacts from their email address during the sign-up process and through “Add connection” feature. It sends an initial invite message to all these contacts to join LinkedIn and also sends reminders at later point in time. These reminder emails are sent without plaintiff’s knowledge or consent. The plaintiff filed complaint before the court alleging: 1. Violation of California’s common law right of publicity; 2. Violation of California’s statutory right of privacy; 3. Violation of California’s UCL. The only basis for federal court’s jurisdiction in this case is the Class Action Fairness Act § 1332 (d). The defendants moved for dismissal of the complaint and this decision was on the same.
Decision:
There were several points raised by the defendants in support of their motion to dismiss. This blog will discuss and analyze only the First Amendment defense of the defendants.
The defendants raised several arguments that stem from First Amendment. Firstly, it argued that the emails were to “facilitate associations among people and therefore concerns matter of public interest” and they are non-commercial speech falling under the First Amendment protection. The reminder emails were not solely for the purpose of advertising so they cannot be commercial speech for the First Amendment purpose. The court rejected this argument relying on the Bolger’s test (Bolger v. Youngs Drug Products., 463 U.S. 60, 66, 103), wherein it was held that pamphlets containing discussions important of public issues were commercial speeches. The LinkedIn court held that the defendant’s reminder emails were sent for advertisements, promoting their service and had economic motivations. It concluded that the Bolger’s three prong test is satisfied. Hence, the reminder emails are commercial speeches.
The plaintiffs also alleged in their complaint that the emails were misleading and does not deserve the First Amendment protection. The emails sent by LinkedIn appeared to have been endorsed by the plaintiffs. This caused reputational damage to them as they have to apologize to several users for spamming them with several emails. The court relied again on Bolger and held that these emails were misleading and First Amendment does not come to rescue of the defendants.
The next argument of the defendants was that the reminder emails were protected by First Amendment as they are “incidental” or “adjunct” to the connection invitation which are protected by First Amendment. They also claimed that reminder emails promote rights of free speech and association. They relied on Page v. Something Weird Video (960 F. Supp. 1438, 1443-44 (C.D. Cal. 1996)) among others. The Court distinguished this case by stating that the defendant in Page used a video of an actress who acted in the video and the same videos were protected by the First Amendment. But, in the current case there is no underlying work that is protected by First Amendment to which the reminder emails would be “incidental” or “adjunct” to. Hence, this argument fails.
The court partially allowed the motion to dismiss with the right to amend the complaint.
Analysis:
The defendant in this case relied on First Amendment protection among others. The court relied on Bolger’s test to hold the defendant’s reminder emails were commercial speeches. Main advantage for the plaintiff was that these two cases have a similar facts. In Bolger’s case the medical informational pamphlets were held to be commercial speech as they were 1. Advertisements; 2. Promoting their product; 3. Had economic motivations. The reminder emails could be compared to that of advertising pamphlets in Bolger. The revenue model of LinkedIn depends on its number of users. Its reason to promote the website is directly linked to the revenue interests. Thus, the court was right in concluding that these reminder emails were commercial speeches because they were advertisements with economic motive. The court was also right in holding that the statements were misleading. All of us get several spams emails or unwanted emails. We reject or delete these emails as they come from an unknown sender. But, those which refer to any of our contacts shall have a different consideration. We may consider them seriously and may also subscribe to them. LinkedIn used this to its advantage and sent emails making its reminder emails appear to have been endorsed by their users who were friends with the targets of these emails. This is definitely added to the reputational damage of the LinkedIn users. It also misled the targets. Hence, the court was right is holding that these were misleading. Applying Central Hudson test where the US Supreme Court, First Amendment does not cover the misleading commercial speech. The defendants lost the First Amendment protection. I am in total agreement with the court’s decision.