April 10, 2013 8:46am PT by Venkat Balasubramani
Actress Suing IMDb Faces Tough Questions on Second Day of Trial
Huong Hoang, the actress suing IMDb for revealing her age, got her second day at trial to prove her case after opening arguments were delivered on Monday.
On Tuesday, the jury heard testimony from three witnesses -- Hoang, her agent Joe Kolkowitz and IMDb’s customer service manager Giancarlo Cairella.
It was a lively day, full of discussion about an actor's livelihood, how actors are cast and more about the relationship between a prominent website and the people who use it. And, of course, on a day that put a spotlight on the roles that people play, there was an O.J. Simpson cameo.
Ultimately, the trial continues to investigate IMDb's right to use Hoang's personal information as well as the conduct of both sides in living up to their respective responsibilities. The trial is now moving towards a conclusion.
Here's a look at what was said on Day 2:
More testimony from Hoang:
Taking questions on direct examination, Hoang spoke about her work and how she has been compensated as an actress.
The plaintiff was sharply questioned on cross-examination.
Harry Schneider, IMDb’s lawyer, walked Hoang through her tax returns. Without coming out and saying it, he highlighted that Hoang didn’t make very much money from acting, and that she deducted a fair amount of expenses for the amount of money she made. For example, her acting income in 2010 was between $1000 and $2000, but she deducted amounts for hair and makeup ($987), shoes ($318.86) and miscellaneous expenses ($523). The implication was that Hoang's acting was more of a hobby and less of a serious occupation.
The most grueling part of the cross examination came when Schneider walked Hoang through the IMDb user agreement and its provisions where users promise to submit accurate information.
“You knew you were obligated to make sure the information you provided [to IMDb] was true and accurate, didn't you?” Schneider asked Hoang repeatedly.
The attorney pointed Hoang's attention to various ways she had made some artifice -- submitting an incorrect birthdate initially (she entered in text indicating that she had a supporting birth certificate), entering information through accounts other than her own (despite prohibitions in the user agreement against sharing passwords and accounts), attempting to convince IMDb's customer service that someone else submitted the original date of birth information, and finally, sending over a fake passport image and a fake ID.
In the end, Hoang threw up her arms and admitted she did indeed submit inaccurate information, particularly when she was trying to get the birthdate deleted because she was at wit's end. Still, Schneider pressed on, pointing out numerous inaccuracies in the emails she sent to customer service. For example, at one point, when seeking to have her birthdate corrected, she claimed that “her old representation messed up." She also insinuated in one of the emails that she was a third party sending in information about Hoang's inaccurate birthdate and she knew Hoang.
The jury hears from Hoang's agent:
Joe Kolkowitz, who is Hoang’s agent, got on the witness stand and testified that he had been a talent agent since 1983 and had represented a wide variety of clients, including Howie Long, Shaun White, Will Smith (for a time) and Simpson. (On cross-examination, Schneider asked Kolkowitz whether “he had been playing golf with O.J. three days prior to his wife’s murder.” This drew the obvious objection.)
The agent discussed the process of submitting for a role and why people go through agents, rather than submitting themselves. Agents evidently have special access to information, and not withstanding the possible introduction of digital disrupters - IMDb, hmm -- the agency world is still thriving.
Having established some industry expertise, Kolkowitz offered his opinion that there is a bias against actors who play “younger than their age,” and if their real age becomes known, this can put the kibosh on their career.
That assessment was challenged on cross examination.
Kolkowitz testified that a variety of factors influence decisions on whether to hire an actor. Talent is a big part of the decision, he said. He also admitted that he only learned about Hoang’s date of birth through this lawsuit (and not through IMDb) and he was unable to definitively state that the disclosure of her age resulted in a reduced number of acting jobs. Finally, Kolkowitz also admitted that he couldn't say for certain that she had received fewer auditions, and added that he had “no knowledge regarding monetary loss from loss of roles.”
An IMDb employee takes the witness stand:
The final witness was IMDb’s customer service manager, Giancarlo Cairella.
He testified about the importance of accuracy for IMDb, although he demurred when asked about whether for him personally “accuracy [was] more important than privacy.”
Cairella also mentioned that he did not use his own real name when responding to customer service emails. To avoid any fallout from handling confrontational customers, IMDb employees use aliases. Alfred Hitchock's North by Northwest is a particularly popular source of fake names at the IMDb office. He said he also had an IMDb profile as a result of funding some smaller indie films through Kickstarter, but his profile did not list his birthdate.
Hoang’s lawyers drew two key points from his testimony. First, IMDb has a policy of never deleting information. If the website is shown the inaccuracy of certain information, they will replace it with new information, but the policy is never to simply take something down. Second, Cairella says he construed Hoang’s all-caps email -- when she asked IMDb for proof of her age -- as permission to use her information. He was careful to not concede that her name was part of the payment or billing information, saying that although he had access to her name, he did not have access to her credit card number.
Overall, I would say that IMDb scored some key points today.
No one can predict what the jury will do, but a thorough examination of Hoang’s income raised the question of what is really at stake and whether she was really more of a disgruntled customer than a person who had suffered damages.
Further, she did not necessarily come across as dishonest, but the fact that she submitted incomplete information at every step of the way may plant the seed in the jury's mind that IMDb was justified in ascertaining her true identity and date of birth regardless of whether her email gave express permission or not. Ultimately, the outcome could depend on whether the jury views the principle of privacy as something that is important and should be vindicated regardless of damage caused or whether it takes a more practical -- no harm, no foul -- view of the situation.
Venkat Balasubramani is a lawyer and founder of a boutique firm in Seattle focusing on internet & technology issues. He frequently blogs at Eric Goldman's Technology and Marketing Law Blog. You can follow him on twitter at @Vbalasubramani