This article originally appeared in the Bloomberg BNA Privacy and Security Law Report on May 23, 2016.
In Spokeo, Inc. v. Robins, decided May 16, the U.S. Supreme Court ruled that plaintiffs who allege violations of statutes that contain a private right of action and statutory damages do not have automatic ‘‘standing’’ to sue. The Court instead found that to meet the constitutional requirement of standing, the plaintiff must establish not only the ‘‘invasion of a legally protected interest’’ defined by Congress, but also that the plaintiff suffered a “concrete and particularized” harm to that interest.
The Supreme Court held that the U.S. Court of Appeals for the Ninth Circuit had erred by analyzing only whether the plaintiff’s claim—that he was injured by dissemination of inaccurate information—was “particular” to the plaintiff, without separately considering whether the injury was “concrete”. The Court remanded to the Ninth Circuit to determine the concreteness of the claimed informational injury. The Court also provided useful guidance on the meaning of actual injury. Significantly, the Court acknowledged that while intangible injuries can indeed be “real” and “concrete,” such injuries can give rise to standing only where they pose some de facto risk of harm to the plaintiff. “Bare” or immaterial procedural violations will not suffice.
This holding should enhance the ability of companies to defend lawsuits under privacy, data security, informational rights statutes and perhaps other consumer protection statutes, where the plaintiffs advance procedural violations whose practical effects on the plaintiffs’ own interests are so abstract, ethereal or implausible as to appear unreal. And now that the Court has established a demanding standard to judge the concreteness of harm even where Congress has expressly specified the underlying legal right, it should also follow that in non-statutory cases, where neither the Constitution nor any legislature has established a clearly defined legal right, intangible injury will have to be evaluated in accordance with standards at least as stringent as those established in Spokeo (and Clapper before it).
As discussed below, it may be that the Justices in the 6-2 majority in Spokeo simply could not take Mr. Robins’ claims here seriously. His case was predicated on the arguably implausible claim that he was injured because the defendant disseminated information about him that was far better than the true facts about his life and (or so he claims) hindered his ability to improve his circumstances.