Shutterfly gets Illinois BIPA privacy claims sent to arbitration

In a dispute over so-called “clickwrap” agreements, Shutterfly Inc. succeeded in getting the case sent to arbitration, according to Bloomberg Law. By clicking “accept” on initial sign-up, the original named plaintiff, Vernita Miracle-Pond, in the would-be class suit under the Illinois Biometric Information Privacy Act (BIA) agreed to be bound by Shutterfly’s terms and conditions, including a subsequently added mandatory arbitration clause, Judge Mary M. Roland said for the U.S. District Court for the Northern District of Illinois.

In the recent opinion, Judge Roland determined a user’s biometric privacy claims must be arbitrated according to Shutterfly’s 2015 arbitration clause, despite the fact plaintiff never assented to any version of the terms containing that arbitration clause, according to Security Boulevard. The decision, which is consistent with Illinois’ preference for enforcing arbitration agreements, suggest at least under Illinois law, companies can unilaterally modify their terms of use without getting new assent, as long as both parties agree in advance to allow such unilateral modifications, the article said.

In 2014, the plaintiff clicked “Accept” upon creating a Shutterfly account, thereby agreeing to the company’s then-existing terms of use, which did not include an arbitration provision but stated that the company may amend its terms “from time to time by posting a revised version.” Shutterfly subsequently added an arbitration provision to those terms in 2015.

In June 2019, Miracle Pond and another plaintiff, Samantha Palaf, filed this lawsuit, on behalf of themselves and “similarly situated Shutterfly users,” in the Circuit Court of Cook County in June 2019. They alleged undisclosed use of facial recognition technology to scan the faces of both users and non-users appearing in photographs uploaded to Shutterfly’s website to facilitate “tagging” individuals violated Illinois’ BIPA.