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What Does 'Spokeo' Mean for Standing, Privacy Litigation?

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By Casey C. Sullivan, Esq. on May 18, 2016 11:58 AM

You Google yourself. Go ahead, admit it. We all do. (Some people, I hear, even Bing themselves.)

But what if the Internet got your information wrong, giving you and everyone who Googled you an inaccurate view of your life? Do you have any recourse? For Thomas Robins, the chosen remedy was a lawsuit. When the "people search" website Spokeo published information about his life and got that information significantly wrong, Robins sued the company for violating the Fair Credit Reporting Act. That suit faced a major setback from the Supreme Court on Monday, however, when the Court remanded Robins' suit for a more demanding inquiring into his standing.

But Can You Spokeo Yourself?

As a "people search" engine, Spokeo operates by aggregating public information about individuals and publishing it online -- whether you want it to or not. That information can include anything from your highest level of education to the names of your relatives to the cost of your house.

But Spokeo isn't exactly the perfect platform. It can occasionally get things wrong. In Spokeo's view, Thomas Robins had a graduate degree, children, and 50 years under his belt. None of that was true.

Robins' suit alleged that Spokeo violated the Fair Credit Reporting Act, which requires that covered companies "follow reasonable procedures to ensure maximum possible accuracy" that it makes available for credit reports.

Robins' case was initially tossed out of district court for lack of Article III standing. After all, Robins could allege few, if any, concrete harms he suffered as a result of Spokeo's inaccurate information. The Ninth Circuit revived Robins' suit, however, finding that Spokeo's statutory violation was enough to confer standing.

Privacy Violation as Injury in Fact?

The Supreme Court disagreed. In a six-to-two decision, penned by Justice Alito, the Court rejected the Ninth's standing analysis, emphasizing that, to have Article III standing, Robins must show "injury in fact" stemming from Spokeo's inaccurate publication -- not just the statutory violation.

The Court also criticized the Ninth for "eliding," or merging together, the need to show both a concrete and particularized injury. Those two are not the same, the Court emphasized, and an injury is not concrete just because it is particularized -- as the Ninth Circuit had treated Robins'.

So, what's it all mean? For Robins, the Supreme Court's ruling doesn't fully foreclose the possibility of standing. As the Court noted, not all injuries need to be tangible in order to confer standing. Aesthetic standing, for example, is the basis of many environmental lawsuits. ("I love this land," that argument goes, "and would be injured if it's turned into an industrial hellscape.") And an injury isn't fully outside the realm of possibility for Robins -- a recruiter from another state, for example, who looked him up on Spokeo, could decline to pursue him, thinking he was settled with a family. But he's definitely got a harder road ahead.

The ruling wasn't a decisive win for Spokeo and similar companies, however. Spokeo and other tech companies that deal with personal, public information had hoped for a more bright line rule that would shut down pending litigation. It didn't get it. But for now, things are a bit brighter for the Spokeos of the world. Whether things stay that way will depend on how the Ninth and other courts react to Monday's decision -- and how fast Mr. Robins gets back before the Supreme Court.

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