Suit over Ancestry.com yearbook photo use dismissed for 3rd time

Genealogy website Ancestry.com does not have to face a potential class action claiming it illegally sold access to peoples' photographs and other personal information, a federal magistrate ruled.

Dismissing the lawsuit for the third and final time, U.S. Magistrate Judge Laurel Beeler in San Francisco found on Tuesday that the company doesn't illegally profit from its business model of amassing databases of personal information and selling it for subscription fees. She concluded the California residents suing Ancestry have not suffered any harm.

Benjamin Osborn, a New York-based attorney representing the plaintiffs, said he plans to appeal because the dismissal is "inconsistent with controlling 9th Circuit authority."

Company spokeswoman Katherine Wylie 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. Ancestry sells subscriptions to access its database by soliciting subscribers through emails that have yearbook information of people that might be former classmates.

The case tests limits on the right of people to control the distribution of their names, photographs and other personal information and immunity under the Communications Decency Act, a federal law shielding internet platforms from liability arising from the publication of content by third parties.

Beeler has previously dismissed the lawsuit for failing to establish injury to sue.

The magistrate remained unconvinced that the lawsuit should move forward. Callahan v. Ancestry.com, 20-cv-08437 (N.D. Cal., filed Nov. 30, 2020).

Ancestry's use of peoples' photos did not result in any harm, even though the company profited from their use, Beeler concluded.

Plaintiffs' attorneys argued that claimants were denied the authority to oversee the use of their likenesses. The lawyers relied on two cases decided by judges in the Northern District of California, Fraley v. Facebook and Davis v. Facebook, in which plaintiffs were found to have standing to sue based on federal and state laws recognizing a right to privacy without having to prove that they would have profited if not for the misconduct.

Beeler found the cases irrelevant because individuals in this lawsuit "do not show a commercial interest in their images that precluded the platform's use of them to market [its] features."

"Nothing here approximates the Fraley plaintiffs' property interest in the value of their endorsement," she wrote.

She also rejected arguments that emotional distress and time spent investigating Ancestry's alleged misconduct substantiate grounds to sue.

Lead plaintiff Geoffrey Abraham claimed he spent five hours researching Ancestry's use of his records, checking how easily he could find them and warning his friends about the use of their personal information.

"Mr. Abraham's exploration of Ancestry's use of his records was perhaps for his peace of mind," she wrote. "But like his mental anguish, it is not related to other injury, and it thus does not create standing."

Even if the lawsuit could sufficiently allege harm, Beeler found that Ancestry is immune under the Communications Decency Act because it did not create the photographs it distributed and merely hosts them in its database.

While the company cannot publish private information that is not intended to be posted online, she said that the photographs in this case are publicly available.