Sep 21, 2022

Judge Turns Page on Privacy Suit vs Over Use of Yearbook Photos

The following is from an article written by Scott Holland and published in the Cook County Record web site:

A federal judge has rebuffed a class action accusing of violating a state privacy law by publishing yearbook photos online.

Sergio Bonilla sued in December 2020,alleging the website unjustly enriched itself by using his photo from the 1995 Omaha Central High School yearbook. He alleged this violated his rights under the Illinois Right of Publicity Act. He also brought counts of violating the Illinois Consumer Fraud and Deceptive Business Practices Act and intrusion upon seclusion.

Ancestry initially moved for dismissal for lack of jurisdiction and failure to state a claim, which U.S. District Judge Virginia Kendall granted with respect to the consumer fraud and intrusion allegations. But she denied the dismissal request for the remaining counts. She rejected Ancestry’s arguments it was immune from liability under the Communications Decency Act and that the Copyright Act pre-empted Bonilla’s lawsuit. She also said Bonilla’s claims didn’t fall under any IRPA exemptions.

After that ruling, Ancestry moved for summary judgment. Bonilla both opposed that motion and asked Kendall to order Ancestry to respond to his request for documents and other questions. Ancestry sought a protective order for discovery requests.

In an opinion filed Sept. 16, Kendall granted Ancestry’s request for summary judgment to end the case.

In seeking summary judgment, Ancestry argued Bonilla’s IRPA claim was time barred. Kendall said that law doesn’t expressly place any time limits on lawsuits, but said several courts have determined a one-year limit applies because the Right of Publicity Act supplanted a common-law tort for likeness appropriation. She further explained that clock begins with the initial publication, rejecting Bonilla’s contention a different rule be applied allowing a new claim for every time a mass publication reaches a third party.

“Putting the pieces together, Bonilla had to bring his lawsuit within one year of his yearbook’s first publication,” Kendall wrote. “He did not. On June 27, 2019, Ancestry began hosting the 1995 Central High School Yearbook with Bonilla’s image. Bonilla waited until Dec. 14, 2020, to file his complaint, over a year later and outside the statute of limitations.”

In order to establish a continuing violation, Kendall continued, Bonilla would have to show continued illegal conduct, not continuing legal injury from one alleged violation. Although his photo might’ve been used in “various mediums over an extended period,” she wrote, Ancestry had a single purpose, and it “never changed, altered, reused or expanded upon the original image.” That website users might see the photo, whether on a free trial or paid membership, doesn’t affect the underlying facts.

You can read more in the original article at: