A Maryland federal district court has dismissed a putative class action lawsuit filed against nine companies that manage apartment buildings in the Washington, D.C. area by a 55-year old prospective tenant who alleged the defendants engaged in unlawful “‘digital housing discrimination’” by routinely and intentionally excluding older people from receiving Facebook advertisements for their apartment complexes in the D.C. area. In addition to injunctive relief, the complaint sought monetary damages on behalf of the plaintiff and putative class members.
In Opiotennione v. Bozzuto Management Company, the plaintiff alleged that because of the defendants’ practices, she was denied the opportunity to receive defendants’ Facebook advertisements for rental housing targeted to younger potential tenants. She alleged that had she seen such advertisements, she would have clicked on them, reviewed the relevant information on the defendants’ linked website, and potentially applied for and rented an apartment at one of the defendants’ complexes. The Complaint alleged that Facebook allows advertisers to target their advertisements using characteristics such as age, gender, location, and preferences of Facebook users. (Note that Facebook has a “special ad audiences” feature which is designed to be used for housing, credit and employment ads that, according to Facebook, disallows the type of targeting alleged in this lawsuit). According to the plaintiff, the defendants used this targeting function to exclude older individuals from receiving their advertisements and directed their advertisements to younger prospective tenants.
The plaintiff claimed that the defendants violated the D.C. Human Rights Act (HRA) by (1) making advertisements that state a preference based on a protected class, (2) refusing or failing to initiate or conduct a real estate transaction or falsely representing that a property is not available for a discriminatory reason based on an individual’s age, (3) aiding and abetting Facebook’s violation of the HRA, and (4) steering older individuals by denying them advertisements. She also claimed the defendants violated a provision of the Montgomery County Code that prohibits the publication of a housing advertisement indicating that age could influence or affect a real estate transaction.
The plaintiff alleged that she suffered the following four different injuries in fact, none of which the court found sufficient to confer Article III standing:
- Deprivation of information about housing opportunities. The court commented that while the plaintiff might have preferred to wait for advertisements on Facebook to appear on her screen rather than running her own apartment search on one of many websites on which the defendants advertised or running a Google search for D.C. area apartments, she was not prevented from obtaining the same information on the same apartment websites linked to the defendants’ Facebook advertisements. The court concluded that when the identical information sought by the plaintiff was readily available through other sources, the plaintiff’s preference to use Facebook did not amount to a deprivation of information that might be considered a constitutional injury in fact.
- Economic harm because the inability to learn of opportunities for units at defendants’ properties through their Facebook advertisements caused her greater expense, delay, and hardship in searching for housing. The court found the plaintiff’s alleged economic harm to be highly conjectural, thereby undermining her claim of a sufficient injury in fact. The court again observed that the websites to which the defendants’ advertisements led their targeted audience could just as easily been reached in other ways. In the court’s view, “[n]o more expense and no more inconvenience are required to access a rental company’s website directly through simple searches on apartment search websites or Google than to scroll through Facebook in the hope of lighting upon just the right housing advertisement, which may in fact never appear.”
- Stigmatic harm when learning she had been excluded from the targeted audience for the defendants’ advertisements due to her age. The court noted that Facebook users would have needed to click on a link contained in the advertisements to see why they received the advertisements. The court found there was “no reason to suppose that any Facebook users who received the advertisement would necessarily have clicked that link to find out why they received the advertisement.” It concluded that it was “a far cry from a concrete and particularized injury to suggest that an otherwise facially neutral advertisement can cause harm by stigmatizing members of a certain group “when there is no suggestion that the recipients of the advertisement, nor indeed anyone excluded from receiving it (other than Plaintiff), were even aware of the targeting.”
- Deprivation of the benefits of age-integrated associations by being steered away from the defendants’ properties. The court found this claim to be “simply without foundation,” observing that “when there exists ten paths to the same destination, an individual is not ‘steered away’ from that destination just because one of the paths—and certainly, here, not the most direct path—is obscured from her view.”
This is a significant decision, to us, for a couple of reasons. Most obviously, it seems likely to make it more difficult for private parties to attempt to bring lawsuits related to online ad targeting on social media networks or through methods like paid search. But, secondarily, we wonder whether it will serve as a barrier to regulatory actions as well. Regulatory agencies, of course, do not have to prove standing in quite the same manner as private plaintiffs, but the existence of court decisions that hold that online targeting of advertisements causes no injury to consumers could still interfere with regulatory enforcement actions, by enabling parties to argue that is no harm to support a violation of any law, or to support an award of restitution.