On Friday, the 9th Circuit Court of Appeals considered actress Huong Hoang‘s attempt to revive a lawsuit against IMDb for revealing her age, and while the case has touched upon the ramifications of growing old in an entertainment industry that values youth, today’s hearing was more focused on the privacy consequences of lying to online service providers.
In April 2013, Hoang lost her lawsuit at a jury trial, and on appeal, she’s objecting to jury instructions dealing with her own agreement to provide IMDb with true and accurate information when signing up for its premium service.
Before she sued IMDb over a breach of her privacy, Hoang begged the Amazon.com subsidiary to remove from the website that she was 42 years of age with fear that it would lead casting agents away from hiring her for roles. Hoang even provided false documents like a fake passport image and fake ID in order to fool IMDb into thinking she was younger than she really was. In response to Hoang’s pleas, an employee at the site allegedly used information provided by her credit card payment to search out the truth on privateeye.com.
The question for the 9th Circuit is whether the trial judge erred in jury instructions by putting the burden on Hoang that she did not breach the IMDb Pro user agreement. Her lawyers believe IMDb should have had to instead prove Hoang couldn’t recover damages because of her own actions.
The issue of whether IMDb had the right to ignore any privacy obligations to Hoang opened up a surprising line of inquiry from the three-judge panel at today’s hearing. The judges attempted to figure out whether telling the truth when one agrees to do so is akin to making payment. After all, if you agree to pay $10 to get an apple pie delivered in the mail each month, but don’t make the payment, the vendor isn’t obligated to send you the pie. It’s what’s known as a concurrent condition. There are other types of contract scenarios, though, such as ones where parties may have mutual obligations to one another, but failure to perform a particular aspect doesn’t automatically void the arrangement.
Eric Miller, a partner at Perkins Coie representing IMDb, told the 9th Circuit that telling the truth is a “core obligation” for IMDb’s premium users. He argued that there are lots of salacious gossip websites out there, and that IMDb makes its mark by being a compendium of factual information.
“If the public doesn’t trust the information, there’s no reason for (IMDb) to exist,” said Miller. “Telling the truth is of critical nature and it’s appropriate to view it as a concurrent obligation. If customers don’t do that, then there’s no deal.”
On the other side, Mark Kressel at Horvitz & Levy representing Hoang, concedes that Hoang was required by contract to submit truthful information. But he differs on the impact of not doing so.
“This is a website that catalogues people in Hollywood,” he said. “A lot of these people use stage names. Well, if IMDb’s theory of the contract were correct, that would mean that every actor who is registered under their stage name has obviously now provided false information to IMDb. [The website is] free to take that actor’s credit information, their search information, all of the data they’ve gathered about them and do whatever it pleases because the actor has submitted a stage name instead of a real name. There is nothing in the service agreement that this is the right that IMDb is reserving for itself.”
Kressel also mentioned that IMDb’s agreement aims to ensure the protection of private information.
“An obvious example of that is your credit information,” he said. “Maybe another example is the kinds of movies you’ve been searching. Maybe you’ve only been searching for movies about a parent discovering their child is gay [or films about] people who discover their spouse has been cheating on them. This is private information that you don’t want shared.”
The ramifications of actors using stage names might seem scary, but the appeal won’t necessarily turn on the issue. At the hearing, IMDb’s lawyer argued that even if the jury instruction was wrong, it didn’t amount to any harm to Hoang because there’s no evidence that the trial would have concluded with any other result with a different instruction. Miller pointed out among other things that Hoang failed to show that in the three years where her age was up on IMDb, it impacted her career and led to lost jobs.
The appeal also involves Hoang’s former attorney, who died before trial, but the hearing spent very little time on the issue of whether Hoang couldn’t get a fair trial due to inadequate counsel. Kressel argued that the late attorney was suffering from various ailments and failed to do things like introducing an economic expert to testify about lost earnings while Miller submitted that this unfortunate lawyer was active during the litigation, taking depositions along with other associates and local counsel. There’s no reason to give Hoang victory on this point, said Miller, “short of a rule that everyone gets a do-ever whenever they are dissatisfied with their lawyer’s performance.”