Callahan v. Ancestry.com Inc.

Background

The plaintiffs, who the opinion identifies as California residents, sued Ancestry.com Inc. and other defendants individually and on behalf of a proposed California class. They challenged Ancestry’s use of decades-old yearbook records in promotional emails intended to attract paying subscribers to Ancestry’s databases.

The first amended complaint asserted four claims: misappropriation of likeness under California Civil Code § 3344, unlawful and unfair business practices under California’s Unfair Competition Law, intrusion upon seclusion under California common law, and unjust enrichment based on Ancestry’s alleged sale of the plaintiffs’ personal information.

The court had previously dismissed the original complaint for lack of Article III standing, meaning the plaintiffs had not shown the concrete injury required for a federal court to hear their claims. The plaintiffs amended their complaint and added allegations of emotional harm from Ancestry’s profits, time spent investigating Ancestry’s use of the records, and theft of their intellectual property. Ancestry again moved to dismiss for lack of standing and argued that the Communications Decency Act protected it from liability.

Article III standing

The court held that the plaintiffs still had not alleged an injury in fact. An injury in fact must be concrete, particularized, and real rather than merely abstract or hypothetical.

The court rejected the argument that Ancestry’s use of the plaintiffs’ yearbook records to solicit subscribers, by itself, created a sufficient injury. Although Ancestry profited from using the records, the plaintiffs did not allege that Ancestry suggested they endorsed its product, as plaintiffs had in cases involving advertisements that implied an endorsement. The court also found no alleged commercial interest in the plaintiffs’ images that would prevent Ancestry from using them to market its services.

The court further ruled that the alleged violation of California Civil Code § 3344 did not automatically establish standing. Unlike certain privacy statutes protecting fundamental and historical privacy interests, § 3344 requires injury, and the court found that the rights involved were not comparable to those protected by the privacy statutes the plaintiffs cited.

The additional allegations did not change the result. The court held that emotional distress alone was not a concrete injury because the plaintiffs alleged no commercial loss, defamation, or other accompanying harm. It held that Geoffrey Abraham’s five hours of investigation into Ancestry’s use of the records likewise did not establish injury because the investigation was not tied to reducing another concrete harm. Finally, the court rejected the claim that the alleged misuse amounted to theft of intellectual property because the plaintiffs had not alleged a corresponding commercial value or other separate injury.

Communications Decency Act immunity

Alternatively, the court held that Ancestry was immune under § 230(c)(1) of the Communications Decency Act. That provision generally protects an interactive computer service from liability for publishing information supplied by another content provider.

The plaintiffs argued that Ancestry might have obtained the yearbook information through donations, website scraping, or libraries, and that Ancestry had not identified the third-party provider. The court held that Ancestry did not create the yearbooks and necessarily used information provided by another content provider. It also rejected the argument that immunity required permission from the original yearbook creator for online publication.

The court concluded that Ancestry’s use of the records in pop-up advertisements and promotional emails did not transform Ancestry into a content creator. Unlike an advertisement that changes a user’s activity into an implied endorsement, Ancestry merely presented the yearbook content in a different form. The court therefore held that Ancestry had immunity under § 230(c)(1).

Disposition

The court granted the motion to dismiss the first amended complaint. It dismissed the claims for lack of Article III standing and, alternatively, because Ancestry was immune under the Communications Decency Act. Because the plaintiffs had been given leave to amend after the earlier dismissal but did not cure the deficiencies, the court dismissed the amended complaint with prejudice. The order disposed of ECF No. 33.