WASHINGTON, October 25, 2015 − When false information is published about an individual on the Internet, what remedy does that individual have? Does that individual have the right to file a lawsuit? Was there real harm created because the false information was published?
These are all questions the United States Supreme Court is going to consider next month.
The case in question involves Thomas Robins, a Virginia man who filed a lawsuit against Spokeo, Inc. Spokeo’s website says they are “a people search engine that organizes White Pages listings, public records and social network information to safely find and learn about people.”
Robins alleges in his suit that Spokeo published false information about him, providing a profile on their website that showed he was employed when he was not, as well as false information about his wealth, education, and marital status. Robins claims that this false information damaged his ability to find a job, and that it would also negatively affect his credit and insurance prospects.
Robins is relying on a Federal law, The Fair Credit Reporting Act (FCRA), which provides in part for “fair and accurate reporting.” Robins’ case is not a claim against a credit agency. But by analogy, he wants to use the law’s language and intent to assert his right to having information about himself reported correctly. That effort is not being challenged. But, Spokeo says, because Robins did not have a “real” injury, he should not be allowed to proceed.
The Ninth Circuit Federal Court ruled for Robins, saying that under the FCRA, he had the right to proceed with his case. The court indicated that the allegation of a violation of the FCRA by itself establishes injury even when there is no “concrete” harm.
Unfair and false reporting can be devastating to an individual. Congress passed the FCRA because there were clear and serious problems in the credit reporting industry, including the dissemination of inaccurate and misleading information.
Stories of serious consequences that have occurred to individuals after inaccurate personal and credit reporting abound. Some example:
- One woman lost much of her available credit and insurance because she was deemed to have “bad morals.”
- Another woman was denied medical insurance because a report erroneously characterized her as an alcoholic.
- A college student lost his car insurance because due to a neighbor’s secret testimony.
At issue for Robins and Spokeo is whether Robins has the “right” to bring his lawsuit. Robins says he has the “right” to bring his lawsuit under the FCRA. Spokeo says Robins does not have that right because he does not have “standing.”
“Standing” historically means an individual has suffered “real-world” harm. In other words, an individual must have “a dog in the fight” to be allowed to file a lawsuit.
The determination of standing is critical. Internet firms, for example, interact with millions of individuals and are subject to numerous Federal laws that contain right to sue provisions. Unsurprisingly, Facebook, eBay, Google, and Yahoo! filed a brief in the Robins case, expressing concern that under the Ninth Circuit’s holding, “users could allege that a generalized practice or act violated a law, allowing them to pursue multi-billion dollar statutory damages claims despite the lack of injury.”
In cases such as these, requiring injury to have occurred makes sense. If I am not truly harmed, why should I be allowed to sue? Yet, the opposite position also rings true. If you are doing something wrong that could lead to harming me, why shouldn’t I be allowed to complain, in order to stop you?
Standing is the legal right to initiate a lawsuit. To have standing, a person must be sufficiently affected by the matter at hand and there must be a case or controversy involved that can be resolved by legal action. There are three well-established requirements for “standing”:
- There must be an injury − an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.
- There must be a causal relationship between the injury and the challenged conduct; that is, the injury in question can be traced to the action of the defendant.
- There must be a likelihood that the injury will be redressed by a favorable decision; i.e., the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.
This matter of “standing” is a critical one that the Supreme Court must now address, because Robins, who is currently without any “real” injury, wants to use technical violations of the law (FCRA) to establish his right to file a lawsuit.
Federal Circuit courts around the country are split on this “real injury” requirement. Some courts permit statutory violations like those alleged by Robins to confer standing, while others require plaintiffs to prove a real injury before they are allowed to proceed.
The Supreme Court has historically required that a plaintiff have a real injury, something more clearly defined than what Robins speculatively presents in his claims, like “I can’t find a job,” or “my credit will be hurt.”
Last year, the Supremes ruled that searching the digital contents of smartphones requires a search warrant. It was an indication that they are willing to reevaluate established law in this digital age. It’s not yet clear how they may choose to rule on Robins’ case.
However, companies in virtually every industry are watching this case closely. Giving “standing” to plaintiffs who have not suffered injury, according to the U.S. Chamber of Commerce, will “open the floodgates” to cases based on mere conjecture or minor technical violations of statutes.
Placing information into the public’s view via cyberspace invokes the issue of privacy rights. Privacy however, must be balanced by the right to freedom of expression as well as by censorship laws. But when the information presented to the public on an individual is false, privacy rights have clearly taken a hit.
As an aside, one must question today’s privacy rights in light of what we do, and what is thrust upon us by others. Privacy is highly valued, yet in reality, it is almost a joke in today’s world.
In the workplace, employees are told up front that they can be monitored and that they do not have the right to privacy when using company telephones, computers or other devices. Health devices such as Fitbit are monitored by employers and are used to negotiate health insurance premiums.
An example of a privacy issue in the personal sector is the purchasing we we conduct via credit cards. When making credit purchases, a credit card’s “terms of service” allow for sharing a great deal of personal data with both the card issuer and others. Likewise, using social media can inadvertently reveal numerous aspects of the user’s daily life. The mere use of the Internet creates often hidden personal profiles, and where we click allows many companies to track us and measure our purchases, travel, business and pleasure interests, friends, our fitness, our health, and more.
Even when Internet users act in an acceptably secure fashion, hacks and data breaches regularly expose personal information anyway, including important medical and financial information.
Positioned on and inside buildings, cameras routinely capture our images, our gender, where we are and what we are doing without our being aware. Drones can now take photographs of anyone anywhere, including what may occur inside buildings if the shades are not drawn in the room that’s being surveilled. Tracking technologies can be deployed to follow our cars, and us, anytime and anywhere.
We work in glass buildings, live in glass houses, and exist, effectively, naked, for any and all who want to see. So one could ask, what is all the privacy fuss about? And, given the current environment, does anyone have to have suffered a real injury before he or she is allowed to complain?
The European Union and Argentina have “right-to-be forgotten” laws, which obligate Internet search engine providers and content aggregators to remove certain types of information upon request from someone negatively impacted by that information.
The U.S. does not appear even close to passing such laws. Just as problematic, EU court rulings are said to be vague in their schemes to implement such a “right-to-be forgotten.” Equally problematic, as noted earlier, there are also concerns regarding the interplay among censorship, the right to freedom of expression and the right to privacy.
In the United Kingdom earlier this year, a court ruled that misuse of private information under that country’s Data Protection Act is actionable, meaning an individual can sue for the resulting distress. No real injury. Just “distress.”
If the Supremes rule in favor of Robins, such a ruling could increase pressure on the way personal information is handled on the Internet. If the court rules in favor of Spokeo, the gates will still hold back that proverbial flood of lawsuits. Hmmm. Sometimes a good bath is appropriate.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.