Democracy in America | Personal information on the internet

Can you sue a website that misrepresents you?

The Supreme Court asks whether errors amount to injury

By S.M. | WASHINGTON, DC

MOST employers turn to the web to help get the skinny on their job applicants. But what happens when the information they find is inaccurate? Looking himself up on Spokeo, a “people search engine,” Thomas Robins was surprised to read that he was a well-off man in his fifties with a wife, children and a graduate degree. In fact, Mr Robins is in his thirties, childless, unmarried, unlettered and unemployed.

Alarmed by these discrepancies, Mr Robins sued Spokeo for violating the Fair Credit Reporting Act (FCRA), a law passed by Congress in 1970 to protect consumers from the dissemination of false information about them. The FCRA makes companies liable for “actual damages” resulting from their “willful violation” of the law. By skewing his personal details on their website, Mr Robins claimed, Spokeo had given potential employers the wrong idea about his identity, bringing him “anxiety, stress, concern, and/or worry about his diminished employment prospects.”

Spokeo argued successfully at trial that Mr Robins’s purported injury was merely speculative. Without pointing to a concrete harm, the company claimed, Mr Robins did not have “standing” to press his lawsuit. But Mr Robins appealed, and the Ninth Circuit Court of Appeals ruled in his favour. Since Congress had created a “statutory right” to be free of wilful misrepresentation, Mr Robins was empowered to sue Spokeo for its mistakes. The injury was, in fact, an “injury-in-fact”.

The Supreme Court agreed to review this decision in Spokeo, Inc. v Robins. In a lively oral argument on November 2nd, the justices tussled over what it means to be injured. While the Ninth Circuit’s ruling was “not a good opinion”, in Justice Elena Kagan’s words, it came to the right result. She was taken aback when Andrew Pincus, the lawyer for Spokeo, said that no company can be held liable for “minor errors”. The mistakes in Mr Robins’s report “are not unimportant details”, Justice Kagan shot back. The search engine had “basically portrayed a different person”. Justice Sonia Sotomayor noted that “single people” may steer clear of potential mates who are listed as married online. “If you're not married and there's a report out there saying you are, that's a potential injury”. The harm is not only to one’s “credit-worthiness”, she said. It implicates one’s “stature as a person” and “privacy” as well.

Several conservative justices were hesitant to let Mr Robins’s class-action suitcovering everyone who has been portrayed inaccurately on Spokeo’s serversgo forward. Normally, under Article III of the constitution, a plaintiff must demonstrate that he has suffered “concrete, particularised” harm in order to get a day in court. If Congress has licence to revise the rule of standing by turning any slight it likes into a cause of legal action, the courts may soon be filled with opportunistic litigants. Imagine, Chief Justice John Roberts asked Malcolm Stewart, a deputy solicitor general arguing against Spokeo, that Congress passed a law permitting anybody who is unemployed to sue an illegal immigrant who had a job. Should all of these potential plaintiffs really be allowed to sue? And Justice Scalia wondered why, if Congress gave Mr Robins licence to sue Spokeo, it couldn’t pass a law giving every taxpayer the right to sue the government for “exorbitant expenditures” (like the “$900 toilet seat”) incurred by the Department of Defence.

These slippery-slope concerns track those expressed in a friend-of-the-court brief submitted by eBay, Facebook, Google and Yahoo. The quartet of internet companies warned that “[i]f the Ninth Circuit’s rule stands, plaintiffs may pursue suits” against firms like theirs “even where they are not actually harmed by an alleged statutory violation” and “seek class action damages that could run into the billions of dollars”. Justice Stephen Breyer sought to dampen these fears with a line of questions late in the hearing. The suit only affects people who are directly injured through a company’s wilful indifference to the veracity of their data, he suggested; worries about floodgates opening are misplaced. For some, those assurances are unconvincing."The threat of these suits," James Cooper writes at the Christian Science Monitor, "will make companies think twice before they use consumer data in beneficial ways, like increasing customization or matching consumers with more relevant ads. What’s more, these companies will be reluctant to share data with academic researchers, which will deprive society of beneficial insights that can be gleaned from big data."

The justices seem divided on how to resolve the question. A decision is expected in the spring.

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