This week, Ancestry.com Inc. prevailed in a class action which alleged that it misappropriated consumers’ images and violated their privacy by using such data to solicit and sell their services and products. The court granted Ancestry.com’s motion to dismiss the amended complaint with prejudice because the plaintiffs “did not cure the complaint’s deficiencies” after being granted leave to amend the first complaint.

As we previously wrote in November 2020, Ancestry.com was hit with a class action in the Northern District of California for “knowingly misappropriating the photographs, likenesses, names, and identities of Plaintiff and the class; knowingly using those photographs, likenesses, names, and identities for the commercial purpose of selling access to them in Ancestry products and services; and knowingly using those photographs, likenesses, names and identities to advertise, sell and solicit purchases of Ancestry services and products; without obtaining prior consent from Plaintiffs and the class.” In March 2021, the court dismissed the lawsuit based on lack of standing, but allowed the plaintiffs to amend and address the deficiencies. Although the plaintiffs added allegations of emotional harm, lost time, and theft of intellectual property, that didn’t sway the court. U.S. Magistrate Judge Laurel Beeler said that the new allegations “do not change the analysis in this court’s earlier order.” The court held that the plaintiffs still did not establish Article III standing because they had not alleged a concrete injury.

Additionally, the court noted that even if standing were established, Ancestry.com is immune from liability under the Communications Decency Act (CDA) because it is not a content creator. Magistrate Beeler said that Ancestry.com “obviously did not create the yearbooks [. . .] [i]nstead, it necessarily used information provided by another information content provider and is immune under [the CDA].”

Ancestry.com (Ancestry) was sued on November 30, 2020, in a putative class action case filed in the Northern District of California for “knowingly misappropriating the photographs, likenesses, names, and identities of Plaintiff and the class; knowingly using those photographs, likenesses, names, and identities for the commercial purpose of selling access to them in Ancestry products and services; and knowingly using those photographs, likenesses, names and identities to advertise, sell and solicit purchases of Ancestry services and products; without obtaining prior consent from Plaintiffs and the class.”

The basis of the allegations stem from Ancestry’s business model of acquiring “huge databases of personal information…then selling access to that information for subscription fees.” According to the Complaint, “Ancestry’s databases comprise billions of records belonging to hundreds of millions of Americans.” In particular, the lawsuit alleges that Ancestry’s database “entitled ‘U.S., School Yearbooks, 1900-1999 (“Ancestry Yearbook Database”), which includes the names, photographs, cities of residence, and schools attended of many millions of Americans…includes over 60 million individuals records from California schools and universities.”

The Complaint alleges that Ancestry failed to obtain consent from, give notice to, or provide compensation “to tens of millions of Californians whose names, photographs, biographical information, and identities appear in its Ancestry Yearbook Database,” that this information uniquely identifies individuals, and that Ancestry sells access to the records to subscribers.

Neither of the named plaintiffs are subscribers to Ancestry.com, yet their yearbook pictures and specific information are located and searchable within the database.

The claims against Ancestry include violation of California’s Right of Publicity Statute for “misappropriation of a name, voice, signature, photograph, or likeness in advertising or soliciting without prior consent,” which provides for statutory damages of up to $750 per violation, and declaratory and injunctive relief, the California Unfair Competition Law, intrusion upon seclusion, and unjust enrichment.