Illinois Courts Open the Door for Parallel Advertising Suits

Published: Oct. 06, 2021

Two Illinois District Courts denied defendants’ motions to dismiss and permitted plaintiffs to proceed with their Illinois Right of Publicity Act (“IRPA”) claims alleging defendants used their identities for commercial purposes without first obtaining written consent. In allowing the two class action suits to go forward, both courts distinguished using an individual’s information to provide a service, which could not be a violation, from using an individual’s information to promote a service, which could be.

RocketReach is a web-based company that allows users to search for professional profiles. Potential customers can test the service by searching for an individual and obtaining their names and other identifying information, like location and employment history. Additional contact information, including email addresses and phone numbers, are partially hidden but can be uncovered after the user subscribes to RocketReach’s service. The court found that plaintiffs adequately alleged that their identities were being used for commercial purposes without their consent. The court rejected defendant’s argument that because the website “provides information,” its use fell under an IRPA exemption for non-commercial use of an identity. The court called this a mischaracterization of the plaintiffs’ complaint, which was about the use of their information for the sale of RocketReach’s service, not the existence of their profiles on the page. 

Like RocketReach, ZoomInfo offers an online directory service. The company attracts customers by allowing them to perform searches of individuals. The search outputs an individual’s name with a preview of additional information accessible through a free trial period. After the trial period, ZoomInfo attempts to sell a subscription to potential customers. Plaintiffs alleged that the use of their profiles for advertising purposes without written consent violated IRPA. The court rejected ZoomInfo’s argument that the information was not used to sell the product because the information itself was the product. The court also was not persuaded by the argument that information was not used for the sale of the service because it was for the free trial, as the court determined the free trial was also being used to sell the service. The judge noted that while plaintiffs may ultimately be unable to prove the holding out of their identity for advertising purposes, at this stage plaintiffs’ allegations were sufficient. 

Both decisions relied on the holding in Lukis v. Whitepages, which found that using a plaintiff’s identity in a free preview to sell a monthly subscription service was “a textbook example under the IRPA of using a person’s identity for a commercial purpose.” This is distinguishable from cases where the use of profiles did not constitute a violation because the profiles were being used to sell information about that individual, not the underlying subscription service.

In light of these decisions, businesses that provide search services and attempt to show potential consumer how their search functions work by showing user profiles will want to consider ways to market their offerings without disclosing individual’s identities.  These decisions also underscore the importance of privacy compliance in all aspects of a business plan, including marketing.