Hearst's sale of subscriber info did not violate 'right of publicity' act - Reuters

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• Summary

• Class-action complaint alleged that Hearst violated Illinois' Right of Publicity Act by selling subscribers' personal info
• But law doesn’t cover post-sale disclosure of identity, said appeals court

(Reuters) - Hearst Communications did not violate Illinois law by offering to sell mailing lists with personal information about its 9.1 million subscribers to data-miners, list-brokers, and other “aggressive” marketers, a federal appeals court held.

The 7th U.S. Circuit Court of Appeals affirmed Tuesday the February dismissal of a potential class action that “Good Housekeeping” subscriber Elizabeth Huston filed last year, accusing the media conglomerate of violating the Illinois Right of Publicity Act (IRPA).

IRPA, like laws in about half the U.S. states, replaces the common-law right of publicity that protects individuals from having their image or likeness used in advertising without their consent. Illinois’ version, enacted in 1999, imposes a minimum $1,000 fine for every use of an individual’s “identity” for “commercial purposes” without written consent.

However, the law’s definition of “commercial purpose” is directed to the pre-sale marketing process, banning the use of a person’s identity “to sell or offer to sell” a product or service, Circuit Judge Joel Flaum wrote. That “necessarily” excludes the information on Hearst’s mailing lists, which was “only revealed after the sale is completed,” he wrote.

“Huston’s name and other information may have been sold, but it was not used to sell anything,” Flaum summed up, joined by Chief Circuit Judge Diane Sykes and Circuit Judge John Z. Lee. “That brings Huston’s claim outside IRPA’s ambit.”

Hearst Corp Senior Vice President and Co-General Counsel Jonathan Donnellan, who argued the appeal, did not immediately respond to a request for comment on Tuesday.

Huston’s lawyers, James Dominick Larry of Nick Larry Law and Arun Ravindran of Hedin Hall, also had no immediate response.

According to Huston’s July 2021 complaint, she sought to represent an estimated class of “thousands” of Illinois citizens whose information was included on Hearst’s mailing lists without their written consent.

U.S. District Judge Michael Mihm granted Hearst’s motion to dismiss for failure to state a claim on which relief could be granted. He ruled that IRPA liability “is limited to instances where a person’s identity is used or held out to sell a separate product, and the mailing lists are not separate from Huston’s identity.”

The 7th Circuit affirmed Mihm’s ruling but rejected his reason, focusing instead on the fact that mailing-list purchasers only gained access to Huston’s information after the sale was complete.

“It is not enough for Huston’s name and other information to appear on or within a product,” Flaum wrote. “Her identity must help sell something — whether it is that product or a separate product or service.”

The case is Elizabeth Huston v Hearst Communications Inc., 7th U.S. Circuit Court of Appeals, No. 22-1489.

For Huston: James Dominick Larry of Nick Larry Law and Arun Ravindran of Hedin Hall

For Hearst: Jonathan Donnellan and Andrea Butler, Hearst Corp

Our Standards: The Thomson Reuters Trust Principles.

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Hearst's sale of subscriber info did not violate 'right of publicity' act - Reuters
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