Lawsuit spotlights some dicey areas in online info-sharing
A friend of mine likes to proclaim that “age is the great democracy.” In the middle years, that’s about the most soothing thing you can say.
But it does little to cheer performers, particularly actresses, who are facing the big 4-0. Those who have made it big already struggle to find roles, even if they look much younger, but the problem is probably especially pronounced for the many more aspiring actresses still waiting for their life’s investment to pay off. For those over 50, forget it.
These well-established complaints over ageism in the industry took an interesting turn recently when an unidentified actress filed a $1 million suit in Seattle against Amazon.com and its subsidiary IMDb, claiming that the showbiz credits site used her legal name, address and ZIP code that she provided when she subscribed to IMDbPro to glean information about her birthdate, which they published in her profile without her permission.
Shortly after the suit was filed, the Screen Actors Guild and the American Federation of Television and Radio Artists went on the attack against IMDb. They pressed the site to limit the use of age information, saying that for many performers, “when their actual ages then become known to casting personnel, the 10-plus year age range that many of them can portray suddenly shrinks, and so do their opportunities to work.” They said that IMDb has a “moral and legal obligation” not to facilitate age discrimination in employment.
The unidentified actress, rather than try to overcome the obvious First Amendment concerns (in her case IMDb is publishing accurate information available in public records), is pursuing a number of claims, including breach of contract, fraud and, most provocatively, violation of Washington’s privacy act. The privacy issue is just the thing to stir emotion and support, as lawmakers increasingly turn their attention to the wealth of information held by Internet firms.
“In the entertainment industry, youth is king,” the actress’ suit states. “If one is perceived to be ‘over-the-hill,’ i.e., approaching 40, it is nearly impossible for an up-and-coming actress.”
On Wednesday, Amazon filed a motion for dismissal, arguing not only that her suit relied on “pure speculation” over how it used the information that she gave but that she voluntarily supplied the data “for use consistent with her agreements with IMDb.com.”
The motion states: “Without any factual support, plaintiff makes the unreasonable assertion that her birthdate could be obtained from no source other than her credit card data and that it is therefore her belief that defendants obtained her birthdate using her credit card information. (Further, plaintiff has no legal privacy interest in her date of birth, which she acknowledges was part of public records, and therefore the alleged actions were not unlawful.)”
As for the charge that they “intentionally intercepted and recorded” her information to use that date for “unlawful purposes” in violation of the privacy act, Amazon points out that she gave her consent. Even if IMDb used her subscriber info to find her date of birth, that use fell within the subscriber agreement. She had “no expectation of privacy,” Amazon states, as the information she claims she intended to keep private from the site “she sent directly” to it.
SAG’s focus on IMDb undoubtedly helps drive attention to age discrimination, but it’s uncertain how far the suit can go and what type of legal claim SAG or AFTRA could have.
Alan Brunswick, partner at Manatt, Phelps & Phillips, said that age discrimination laws “are generally designed to prevent discrimination against folks 40 and older.” He added that “because IMDb has no contractual relationship with SAG, I don’t think they have any legal obligation to comply with SAG’s requests, let alone their demands.”
SAG’s general counsel Duncan Crabtree-Ireland says that while “there may be a First Amendment argument [to publishing birthdates], does that mean you should?” The main concern is for the lesser-known performers facing casting directors who rely on IMDb. SAG would like to see the site give these thesps the option on whether to disclose.
But even if the guilds were able to forge some agreement with IMDb, age information would be harder to access but wouldn’t be impossible to find. Although they’ve refined privacy settings, social media leaves a trail of information that may be difficult for future performers to shake.
Not that age was ever easy to obscure, especially as a performer gained notoriety. About a decade ago, working for TV Guide, I had to profile an actor approaching his middle years. Anxious to prove that he was 38, he went so far as to show me his driver’s license to prove it. The story ran with the age and, sure enough, I got a letter from one of his high school classmates, wondering how this fellow alum had stayed so young.