December 06, 2011 9:23am PT by Eriq Gardner
IMDb Explains Why 40-Year-Old Actress Shouldn't Fear Blacklisting
Ever since an anonymous actress decided to sue the Internet Movie Database for allegedly using her credit information to post her age, the lawsuit has engendered great discussion. Last week, the general counsel for the Screen Actors Guild stood up for the woman's right to pursue her lawsuit in anonymity, filing a declaration in Washington federal court that stated that the woman's fears of being pigeon-holed as an "over 40" actress and blacklisted for being a "complainer" were legitimate.
On Friday, IMDb responded by dismissing the woman's fears of retaliation as unreasonable. The popular entertainment information website gives three reasons why this actress -- and perhaps everyone in Hollywood -- shouldn't have misgivings about coming forward to complain publicly. Remember the old adage about there not being any such thing as bad publicity?
The $1 million lawsuit against IMDb (and its parent company, Amazon.com) will eventually be adjudicated on such issues as the terms of service for signing up to the premium version of the site, privacy, fraud, and perhaps a First Amendment right to publish truthful information. But for right now, the main drama is happening on a quirky procedural issue testing the plaintiff's wish to proceed as a "Jane Doe."
The issue will be decided by a judge who will have to balance the woman's fears of retaliation against the defense's need for information in order to fairly fight allegations. Up until last week, iMDb mostly focused on promoting the latter cause, which isn't to say there weren't any harsh words for the adversary. Using the federal court to censor the truth was "selfish," IMDb argued.
Now, perhaps prompted by the declaration submitted by SAG lawyer Duncan Crabtree-Ireland, and the subsequent press attention, iMDb is knocking down the anonymous' woman's supposed fears of retaliation by giving three reasons why they are unfounded.
1. The woman is overestimating IMDb.
"IMDb.com is a website -- not a studio, casting agency or employer of actors," says its attorney Elizabeth McDougall at Perkins Cole in the brief. "Although it is used by the entertainment industry, it is not a 'player' in that industry."
McDougall argues that the website is merely a tool and "not particularly popular in the entertainment industry." Given a choice between taking IMDb's side and the actress' side, the defense says the answer is clear. "Plaintiff has and will continue to have support for some in the industry for her lawsuit," says the brief.
Of course, it only takes a few powerful studio execs to decide not to cast the actress. IMDb says the prospect doesn't rise to substantial, severe harm. "Courts have repeatedly and specifically held that threats of termination, blacklisting or related negative employment retaliation are insufficient to warrant anonymity."
2. There hasn't been any retaliation so far and the public will make sure there won't ever be.
IMDb already knows the woman's identity. The company previously submitted documents in the case about its suspicions and her lawyer confirmed these suspicions in a sealed document. The brief mentions this and then goes on to state:
"To be clear, Defendants have never retaliated against Plaintiff (or anyone else) for complaining regarding its practices. And regardless of this Court's ruling on its motion, Defendants do not intend to retaliate against Plaintiff. Requiring Plaintiff to identify herself to the public is not going to change that. Indeed, if there were risk of retaliation, that risk is mitigated by the public and judicial scrutiny placed on Defendants through this action."
Last week, the woman submitted a declaration saying that iMDb had her account "flagged" and wouldn't publish certain of her screen credits. The company dismisses those allegations as vague and unsupported.
It's interesting to note that upon the filing of the case, IMDb decided to proceed extremely cautiously by not tipping off the woman's identity. What would have been the repercussions for doing so?
3. The woman is too thin-skinned.
The plaintiff's attorney has pointed to more than 750 news articles on this lawsuit (including our extensive coverage here) and has submitted 22 pages of supposedly harmful statements directed at the actress in reaction to the lawsuit. IMDb says it doesn't matter. "While Plaintiff alleges that so-called 'harmful messages regarding the lawsuit' would 'worsen' if her identity is revealed, she provides no evidence that the comments would escalate into anything beyond what they are -- off-hand chatter on the Internet," argues the company.
The comments may be unflattering, but that doesn't mean they add up to a reasonable fear of harm, says IMDb. "If these comments bother Plaintiff, she need not read them."
Actors get hired partly on their basis to drive box office. Negative sentiment from the public could have casting repercussions, or at least give casting directors an excuse to hide age discrimination. That isn't to say it's the court's responsibility to shield the woman from negative reaction and bad press. Is there a difference between legitimate rebuke and illegitimate retaliation? IMDb believes retaliation has to rise above mere "embarrassment." Expect a hearing and result on this question soon.