Instead of hiring a private eye to discover information about a person of interest, several websites offer users the chance to click on a name and discover all sorts of background information. The basics, like age and city of residence, are free, but a hefty subscription fee is required to delve deeper and obtain more detailed information like birth dates, marriage records, and criminal histories. Two people, whose identities were used to solicit the purchase of these paid subscriptions without their permission, filed a class action suit against the website operators. The defendants have now responded with a motion to dismiss.

The plaintiffs, Jose Medina Camacho of Alabama and Rhonda Cotta of California, filed a class action complaint in the Southern District of California on February 6. It is against defendants The Control Group Media Company (TCG), a Delaware corporation that operates four people search websites—TruthFinder, Intelius, Instant Checkmate and US Search (the People Search Websites). The class action seeks an order to stop TCG’s “unlawful practice” of using names and identities of unknowing and unwilling parties without their consent in order to sell their data-access service.

Camacho and Cotta state that their names, ages, locations and names of immediate family members were used on TCG websites from May to July 2021. The complaint explains that after a person’s name is obtained, the website visitor has the option of clicking a “Get Your Result” button, which costs between about $20 to $40 per month and expands the service to an unlimited number of searches. It states that Camacho and Cotta never consented to the use of their names for the purpose of selling subscriptions.

The class action, filed by the named plaintiffs and an unknown number of others similarly situated, allege that TCG is violating the “right of publicity” laws of both Alabama and California. The Alabama Right to Publicity Act is designed to “protect individual property rights and prevent the exploitation of individuals’ identities for another’s commercial gain.” It covers unauthorized use of names, signatures, images, voices, and other attributes. The California law is similar.

Plaintiffs are seeking an injunction against use of their names, actual damages including profits received from the unauthorized use of their names, punitive damages, costs and attorney’s fees. They are also demanding a jury trial.

On April 18, the defendants filed a motion to dismiss, arguing that the two states’ right of publicity laws were never intended to cover the “routine part of e-commerce” that consists of inputting a name into a search engine in order to generate a list of results. Their motion consists of a 35-page memorandum of points and authorities.

Defendants argue that the plaintiffs “improperly attempted” to use the two right of publicity laws to “attack this routine part of e-commerce – generating search results based upon user queries—that these statutes were never intended to cover.” They compare their search activities to all other internet searches, “such as looking for a biography on Amazon.”

The defendants want Camacho “stopped in his tracks,” because he is in the wrong forum. They say he is bound by the Federal Arbitration Act to resolve his complaint in arbitration because the “Get Your Result” button links to a message that “constitutes affirmative consent” exclusively to arbitration. They argue that Camacho’s attorney therefore agreed to arbitration when he clicked the button to get the screen shots that were included in his complaint. These screenshots include plaintiffs’ names and basic information about them.

They also argue that Cotta failed to state a cause of action because she does not show that anyone actually clicked on her name and that someone thus obtained an “unauthorized publication or dissemination of her identity.” They say she suffered no mental anguish or injury. They also argue she is barred from pursuing her claim by California’s anti-SLAPP statute, which allows defendants to exercise free speech rights in connection with public issues. Similar arguments seek to disqualify Camacho’s claims.

In addition, the defendants claim that the right of publicity laws do not apply because users are not urged to purchase a separate product. Instead, they are part of “the original product offered for sale.”

TCG claims it is providing a free speech function and urges the court to reject “what amounts to an attempt to abolish search-engine-based products” like public records, biographical information and background reports. They argue their activities are protected by the First Amendment and that strict scrutiny must be applied to any attempts at “content-based restrictions.”

Defendants claim they are just republishing information available in public records. They say their ads for monthly subscriptions receive similar First Amendment protection. They also say plaintiffs’ claims are barred by the Commerce Clause because they “impermissibly burden interstate commerce.”

Many laws such as the right of publicity were enacted prior to the invention and explosion of internet capabilities. Camacho and Cotta v. PeopleConnect may just be the latest example of the challenges that these and similar websites pose to balancing plaintiff’s privacy rights against the advances of technology.