Ancestry immune from lawsuit, US court finds in yearbook photo case

A federal magistrate judge has dismissed a class action against genealogy website Ancestry.com that claimed it illegally sold access to peoples' photographs and other personal information in its U.S. school yearbooks database.

The California residents didn't suffer sufficient harm to sue the consumer DNA company because the information is publicly accessible, ruled U.S. Magistrate Judge Laurel Beeler on Monday. She also found Ancestry is immune under a federal law shielding internet platforms from lawsuits.

"The information in the Yearbook database is not private: It is public yearbook information distributed to classmates," she wrote.

Company spokeswoman Gina Spatafore said in a statement, "We are pleased with the court's decision."

The lawsuit targeted Ancestry's yearbook database of 60 million minors who attended California schools from 1900 to 1999 in a case testing the right of people to control the distribution of their names and photographs and the limits of immunity under Section 230 of the Communications Decency Act, which protects platforms from liability arising from the publication of content by third parties.

Plaintiffs' attorneys at Morgan & Morgan did not respond to requests for comment.

Beeler found that "more is needed" beyond claims that the company violated peoples' privacy by selling data to solicit paying subscribers. Callahan v. Ancestry.com Inc., 20-cv-08437 (N.D. Cal., filed Nov. 30, 2020).

"A plaintiff must do more than point to the dollars in a defendant's pocket; he must sufficiently allege that in the process he lost dollars of his own," she wrote, noting a ruling from a judge who handled a similar case against Google over a privacy policy allowing it to collect user data across all of its services.

Standing can be established, the judge indicated, if it's alleged that the profiles of users suggest that they endorse Ancestry when they do not.

In Fraley v. Facebook, the tech giant marketed products to a user's friend by sending an advertisement with the user's profile. The court found that this was a concrete injury because it implied the user's personal endorsement of the product, which it said has immense value measured by the additional profit Facebook earns by selling the specialized advertisements.

Even if the lawsuit could allege harm, the company is immune under the Communications Decency Act, the court said.

Claimants argued that there's liability because Ancestry didn't obtain the yearbooks from their authors and that it actually created content by adding other information it collects.

But Beeler found that no case supports the conclusion that immunity applies only if the platform obtained the disputed content from the original author. She similarly rejected arguments that Ancestry hosts original content.

"Instead of creating content, Ancestry -- by taking information and photos from the donated yearbooks and republishing them on its website in an altered format -- engaged in 'a publisher's traditional editorial functions [that] do not transform an individual into a content provider within the meaning of 230,'" she wrote.

Plaintiffs were allowed leave to amend.