The rise of social media has redefined advertising, giving businesses exciting new ways to reach consumers and deliver their messages.  To no one’s surprise, it has also provided new fodder for advertising class actions.  However, as one plaintiff recently learned the hard way, these social-media class actions can founder on the same shoals as their traditional-media counterparts.

As you likely know, Groupon is an e-commerce company that promotes discounted goods and services from local merchants.  In 2015, Groupon created a software “widget” that crawled the social-media platform Instagram looking for public photos that users had posted while patronizing the businesses that Groupon featured on its website.  The widget would then display those photos on Groupon’s own website in connection with deals for those businesses.  For example, a visitor to Groupon’s deals page for a particular restaurant would see a collection of Instagrammed images taken and posted at that restaurant.  If the visitor hovered her cursor over one of these images, she would see the Instagram username and caption associated with that image.

Enter Christine Dancel (@meowchristine on Instagram).  In 2015, Dancel and her boyfriend visited Philly G’s Italian Steakhouse in Vernon Hills, Illinois.  While there, she snapped a selfie, posted it publicly to her Instagram account for the world to see, and tagged it with the restaurant’s name.  Groupon’s widget found Dancel’s photo and displayed it, along with others, on Philly G’s Groupon deal page.  This moved Dancel to file a putative class action against Groupon asserting violations of the Illinois Right of Publicity Act (“IRPA”), which prohibits the use of “an individual’s identity for commercial purposes … without having obtained previous written consent.” Dancel sought to represent a class of “[a]ll persons … who maintained an Instagram account and whose photograph (or photographs) from such account was (or were) acquired and used on a groupon.com webpage for an Illinois business.”  She prayed for statutory damages of $1,000 per alleged violation—tens of millions of dollars in total.

Earlier this week, Judge Guzmán of the Northern District of Illinois denied class certification.  See Dancel v. Groupon, Inc., No. 18 C 2027 (N.D. Ill. Mar. 4, 2019).  His analysis keyed on whether the use of someone’s Instagram username or photograph qualifies as use of their “identity” under the IRPA.  The statute defines that term as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener.”  It provides illustrative examples of such attributes, including one’s “name,” one’s “image,” and one’s “voice.”  Notably, the statute clarifies that “name” means “the actual name or other name by which an individual is known that is intended to identify that individual.”

As Judge Guzmán observed, an Instagram username—unlike an “actual name”—may or may not “identify” the account holder “to an ordinary, reasonable viewer” of Groupon’s website. For example, ordinary visitors to Groupon’s website would likely recognize the “identity” associated with the Instagram usernames @kimkardashian, @taylorswift, or @justinbieber.  On the other hand, ordinary visitors to Groupon’s website are less likely to associate the username @meowchristine with one Christine Dancel.  Whether such a linkage exists in the minds of ordinary web surfers, Guzmán concluded, is “inherently a question of fact that cannot be answered with the same evidence across the putative class.”

The same went for the borrowed Instagram photos themselves.  As the court explained, not all of those photographs depicted the Insta posters’ faces; “sometimes it is a photo of a bowl of noodles ordered at a given restaurant or the polished nails of a person showing off her manicure.”  Thus, whether a given photograph “identified” the individual who posted it was a “determination [that] must … be made” on a “photo-by-photo” basis.  The individualized nature of these inquiries rendered the putative class “‘[in]sufficiently cohesive’ to satisfy Rule 23(b)(3)’s predominance requirement.” 

That was the end the line for Dancel/@meowchristine’s putative class action. (Good news for Groupon; not so much for Philly G’s, which closed shortly after Dancel’s visit.)  But not all class actions based on social-media advertising will be so easy to defeat.  Plaintiffs’ lawyers are no doubt already back at the drawing board coming up with improved liability theories more amenable to class-wide adjudication.  Businesses should closely vet their social-media advertising tactics with counsel to ensure they aren’t caught off guard by the next big trend.