Supreme Court Says Plaintiff Must Show Actual Harm From Bogus Profile Created By Spokeo
from the just-being-incorrect-doesn't-necessarily-make-one-liable dept
There’s no greater sin than being wrong on the internet. But can you build a federal case out of it? Thomas Robins tried to do exactly that by filing a potential class action lawsuit against Spokeo (“the people search engine”) for posting incorrect information about him to its website.
The district court tossed his case for lack of standing, only to see it revived by the Ninth Circuit Appeals Court, which found that Robins could potentially demonstrate that Spokeo’s incorrect information may have violated Robins’ personal statutory rights. This eliminated the class action option, but granted him the standing to pursue this on his own behalf.
Now, Robins has reached the end of the line and there’s not much there for him. The Supreme Court has reversed the Appeals Court’s judgment in favor of Robin’s and booted the case back to determine whether Robins can actually be granted standing, considering that to date he has yet to show he has suffered any “actual injury” from Spokeo’s inaccurate information.
This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180– 181 (2000) (emphasis added). The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.
So, the decision is mostly procedural and doesn’t address any questions concerning Spokeo’s gathering and dissemination of possibly incorrect information. As alleged by Robins, Spokeo basically has no idea who he really is.
His profile, he asserts, states that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree. App. 14. According to Robins’ complaint, all of this information is incorrect.
If all of this is incorrect, then one might think Robins should thank Spokeo for putting a more positive spin on his life. But Robins wasn’t happy with the bogus results and claims this entirely positive (if entirely false) profile has cost him employment opportunities.
The problem with his allegations, though, is that Robins has yet to allege anything more than a violation of the Fair Credit Reporting Act (FCRA) by Spokeo. And while violations can result in $100-1000/screwup payouts to claimants for inaccuracies, the Supreme Court expect Robins to produce more than allegations if he hopes to collect from Spokeo. [Paul Alan Levy of Public Citizen emailed me to point out that Spokeo came up on a motion to dismiss where the allegations are what matter, so these inaccuracies could result in collected fines, even if actual harm isn’t proven. He also pointed out that the case is back before the Appeals Court so it can further examine Robins’ allegations, which it failed to do with enough particularity the first time around.]
As the Court notes, plenty of false information can be circulated without ever generating “concrete, particularized” harm.
Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.
Without more information on the alleged harm, Robins has no standing. Robins may be able to produce this, but he’ll be doing it in front of the Ninth Circuit Appeals Court. The dissenting opinion, however, finds Robins has already satisfied this requirement by stating the misinformation’s negative impact on his ability to obtain employment.
Because of the misinformation, Robins stated, he encountered “[imminent and ongoing] actual harm to [his] employment prospects.” Ibid. As Robins elaborated on brief, Spokeo’s report made him appear overqualified for jobs he might have gained, expectant of a higher salary than employers would be willing to pay, and less mobile because of family responsibilities.
But as it stands, Robins hasn’t produced enough evidence to satisfy what the Supreme Court is looking for in terms of harm, and it’s leaving that up to the court that revived the case. “Jobs he might have gained” doesn’t sound very “concrete.”
There’s no doubt information gathered without sufficient vetting will inevitably produce misleading or wholly incorrect “profiles.” Spokeo’s bulk collection seems to falling short of its stated goal of being a “people search engine,” at least in Robins’ case, but if he wants to pursue this further for himself — much less as the leading representative for class of similarly-harmed individuals, he’ll at least need to show he has actually been harmed by the misinformation, rather than theoretically harmed by his perception of employers’ responses to the false data.