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No Harm, No Foul: Court Dismisses LinkedIn User's Claims of Wrongful Disclosures

7 Feb, 2012 By: Arthur Yoon, Jeffrey Richter

LinkedIn Corp. successfully argued for the dismissal of a class action lawsuit – Low v. LinkedIn Corporation – filed in the U.S. District Court, Northern Division of California by plaintiff Kevin Low, who alleged that LinkedIn improperly permitted third-party advertisers to view personal information of LinkedIn users, including their personal browsing histories and other potentially sensitive information that may be gathered based on a user’s prior searches. As a result, Low claimed that LinkedIn’s conduct had harmed him in two ways.

First, the plaintiff alleged that he suffered embarrassment and humiliation caused by the disclosure of his personal browsing history. Second, he alleged that his personal browsing history is valuable personal property with a market value, and as a result of LinkedIn’s conduct, Low relinquished such property without compensation to which he was due. Low asserted that LinkedIn’s conduct violated the federal Stored Communications Act and California’s Constitution, Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and common law.

The court, however, decided that the plaintiff could not proceed with the lawsuit because, in its opinion, he had not sustained an actual injury. In rejecting Low’s first theory of emotional harm, the court found several deficiencies. LinkedIn apparently assigns its users unique identification numbers and these user IDs are linked with cookies and Web beacons that allow personal information to be associated with otherwise anonymous users’ browsing histories. Low had not established that his browsing history, with embarrassing details of his personal browsing patterns, was actually linked to his identity by LinkedIn and actually transmitted to any third parties.

More to the point, he had not established how third-party advertisers would be able to infer his personal identity from LinkedIn’s anonymous user ID number combined with his browsing history. The plaintiff did not establish the type of information that had actually been transmitted to third parties, how it had been transferred to third parties, and how LinkedIn had actually caused him personal harm. Any concern that his sensitive information might be transmitted in the future was too theoretical for purposes of establishing an actual injury for the instant case. Therefore, Low did not establish an actual emotional harm as a result of LinkedIn’s conduct.

The court also rejected Low’s second theory of economic harm; specifically that he suffered a financial loss by LinkedIn’s practices. The court determined that this claim was too abstract and hypothetical, and that unauthorized collection of personal information does not necessarily create an economic loss. In short, Low did not establish how he was foreclosed from capitalizing on the value of his personal data or how he was deprived of its economic value simply because his unspecified personal information was purportedly collected by third parties. The court distinguished other cases where sensitive personal data, such as names, addresses, Social Security numbers and credit card numbers were improperly disseminated into the public, increasing the risk of future harm. In this case, the plaintiff failed to establish how his personal information was disclosed or transferred to third parties, and how he suffered any actual economic loss. Accordingly, his complaint was dismissed.

The LinkedIn case shows there are sound legal limitations to injury claims an individual can assert against a business utilizing customer information. Even so, an advertiser, with the assistance of legal counsel, should review its practice of collecting and distributing such valuable data from time to time to assess and ensure that its practice is lawful to protect itself from claims of wrongful disclosures.

Jeffrey Richter and Arthur Yoon are partners at Los Angeles-based Finestone & Richter. They can be reached at (310) 575-0800, or at and

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