April 09, 2013 6:06am PT by Venkat Balasubramani
Actress Suing IMDb Takes the Witness Stand
SEATTLE -- In October, 2011, an anonymous actress sued IMDb, alleging that the publication of her age on her profile page had caused her harm. She said, "in the entertainment industry, youth is king."
On Monday, 18 months later, after that actress was revealed to be Huong Hoang (aka Junie Hoang), a trial commenced in a Seattle federal court. The parties picked the jury and gave opening statements. Then, Hoang took the stand, and described her Kafkaesque attempts to get IMDb to pull down her age and why it mattered to her. "The entertainment industry is based on perception," she told the jury.
Not to be outdone, but IMDb had its own opinion about what the trial represented -- a "search for truth," according to its lawyer, Harry Schneider.
Day 1 of the trial would deliver opinions about the consequence of appearances and importance of accuracy. One of the things spoken about in a Seattle courtroom was IMDb's policy of never removing information; The website only corrects misinformation.
Hoang’s theory of the case:
Hoang’s lawyer, Derek Newman, presented the trial as being an investigation on whether IMDb misused Hoang’s submitted billing information after she signed up for an IMDb pro account.
The judge in a pre-trial ruling sided with IMDb and ordered the parties to not reference the term “age discrimination” at all in their presentations, so when it became time to address her harm, Newman danced around this elephant. The IMDb.com site was described as one where the public finds information about actors or uses it to settle bets. IMDb Pro is widely used in the industry— like LinkedIn for Hollywood types. Although Newman couldn't directly talk about age discrimination, it was perfectly fine to discuss in general how detrimental information on an IMDb profile can result in the loss of acting jobs.
Newman said that IMDb promised to only use billing information for billing purposes, and in this situation, he said that IMDb clearly went beyond this. His client's Sisyphean efforts to remove her incorrect birthdate were provided in detail. IMDb’s customer service desk provided a lackluster response to her repeated pleas to remove her date of birth. It would not respond to her postal letters. Her voicemails were ignored. Only occasionally did her email get answered.
When she got a response, she was asked to provide documentation such as a copy of her passport. Eventually, she grew frustrated and asked what information IMDb had that reflected the 1978 birthdate in her profile. In response, IMDb customer service looked in the billing system and found her real name. Using this name, the customer service representative looked up her date of birth on PrivateEye.com, a third party website. IMDb then added the birthdate to her profile. (Newman characterized PrivateEye as a “detective agency,” but the judge said she did not want the jury to get the impression that an actual person was going any investigating.)
Newman argued that her email requesting the proof IMDb had of her 1978 birthdate was not an invitation for IMDb to use her billing information to find out her real name (and then her birthdate).
IMDb’s theory of the case:
IMDb’s lawyer, Harry Schneider, said that a trial is about a “search for the truth,” that IMDb had only corrected Hoang’s birthdate on her profile. According to Schneider, the key question for the jury to consider was whether IMDb was “contractually prohibited” from checking that they had a certain person’s name right.
He maintained that when users sign up to IMDb, they agree to terms and conditions, and that IMDb adhered to its obligations as well as its founding principle of providing accurate information to its readers.
The defense attorney also stressed that Hoang was not totally forthcoming about her own birthdate —she initially put in the incorrect date, and only admitted late in the course of the litigation that she was the one who submitted that. Hoang also was said to have handed over false identification information in an effort to get IMDb to remove the birthdate. (Hoang’s lawyer pointed out in his opening statement that Hoang only provided false identification information after IMDb accessed her real name and birthdate and changed the birthdate from 1978 to 1971.)
Schneider stressed three other points: First, a person cannot be out of compliance with the terms of an agreement and still claim the other party did not abide by their obligations. IMDb will be arguing that Hoang was in breach of the terms of service and cannot try to hold IMDb liable for its breach. Second, even if Hoang proves a breach, she still has to prove damages, and he said her damages were speculative. She did not produce tax records prior to 2008, and during 2008 through 2011, her income from acting was steady and didn't seem to take any hit from published information about her age.
Finally, he asked the question of whether her name was truly private information.
Hoang gets on the stand:
As the first witness, Hoang was called to testify about her experience with IMDb. She walked the jury through her early life and career.
Originally an immigrant to the US from Vietnam, she grew up in Houston. In 2007, she moved to Los Angeles to pursue an acting career. She does not act full time, but has had a slew of acting jobs, the most prominent of which is a film called Fifth Ward. She often plays younger roles and those portraying Asians and even Hispanics. She has also appeared in corporate training videos, advertisements (a Neutragena skin care advertisement) and pilots for Univision.
She discussed how when she first started using IMDb, the effect she thought it had on someone’s career. In her words: "The entertainment industry is based on perception ... your age, how you look; if you tell someone your age, it will affect their perception.”
She also talked about how she went by a nickname and took pains to not disclose her date of birth online, among other reasons, due to an identity theft issue she had experienced in the past. Finally, she stressed her difficult dealings with IMDb and all of the various steps she took to have her information removed or deleted. At one point, she grew so frustrated that she sent them an email in all caps.
"I thought if I typed it in all caps maybe they would listen to me," she said.
Some analysis from Day 1:
The jury may find some sympathy in Hoang's story. After all, who hasn't experienced the hassle that goes with dealing with customer service reps at internet companies? Hoang's reaction to do what she could to fix things is certainly understandable given what she faced.
Additionally, Hoang might have scored some points by tapping into the growing public concern about the amount of private data that is collected by companies. Her theory that IMDb misused her billing information plays on this anxiety.
These two factors may neutralize any possible consent or waiver that may otherwise be implied as a result of her sending an email asking “what proof IMDb had of her age.” (This was the all-caps email that spurred the customer service into action.) It might also minimize the fact that she submitted incorrect information and later also submitted obviously incorrect identification (a copy of a fake passport and a “novelty” identification card).
On the other hand, IMDb could be successful at portraying itself as a company most concerned about accuracy and one that when pushed to the limit by a disgruntled customer, merely took steps to correct information that she insisted was incorrect.
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