Seyfarth Synopsis: The U.S. District Court for the Northern District of Illinois recently denied Plaintiff’s motion to reconsider a prior dismissal of his privacy action due to untimeliness. In a case titled Bonilla, et al. v. Ancestry.com Operations Inc., et al., No. 20-cv-7390 (N.D. Ill.), Plaintiff alleged that consumer DNA network Ancestry DNA violated the Illinois Right of Publicity Act (“IRPA”) when it uploaded his high school yearbook photo to its website. The Court initially granted Ancestry’s motion for summary judgment, finding Plaintiff’s claims to be time-barred under the applicable one-year limitations period. Upon reconsideration, Plaintiff – unsuccessfully – made a first-of-its-kind argument that the Court should apply the Illinois Biometric Privacy Act’s five-year statute of limitations to the IRPA.

Background on the Bonilla Lawsuit

Ancestry DNA, most commonly known for its at-home DNA testing kits, also maintains a robust database of various historical information and images. One subset of this online database is the company’s “Yearbook Database.”

This portion of the website collects yearbook records from throughout the country and uploads the yearbook contents – including students’ photos – to Ancestry.com. On June 27, 2019, Ancestry DNA uploaded the 1995 yearbook from Central High School in Omaha, Nebraska to its Yearbook Database.

More than a year later, on December 14, 2020, Plaintiff Sergio Bonilla filed a lawsuit against Ancestry DNA over its publication of the Central High School yearbook. Specifically, Plaintiff Bonilla – a current Illinois resident and former student of Central High School whose picture appeared in Ancestry’s database – alleged that Ancestry DNA improperly publicized his private information without obtaining his consent. Plaintiff’s lawsuit asserted violations of the IRPA, as well as a cause of action for unjust enrichment. Ancestry DNA filed a motion for summary judgment on the basis that Plaintiff’s action was not brought within the requisite one-year limitations period. The Court agreed, thereby dismissing Plaintiff’s claims.

Court Denies Plaintiff’s Motion for Reconsideration

After the Illinois Supreme Court’s decision in Tims v. Black Horse Carriers (which held that BIPA is subject to a five-year statute of limitations – read our full summary HERE), Plaintiff filed a motion for reconsideration, contending that the Court should actually apply a five-year limitations period to IRPA actions, like it applies to BIPA. To that end, Plaintiff emphasized that the IRPA (similar to BIPA) does not itself contain a statute of limitations. Plaintiff also noted that both the IRPA and BIPA derived from legislative concerns centered on Illinois residents’ right to privacy. Therefore, according to Plaintiff, the IRPA’s legislative purpose would be best served by applying the catch-all five-year limitations period of 735 ILCS 5/13-205.

On reconsideration, the Court again rejected Plaintiff’s argument. In its May 23, 2023 decision, the Court first outlined relevant case law precedent, under which the only courts to address this issue previously held that the IRPA’s applicable statute of limitations is one year. See Toth-Gray v. Lamp Liter, Inc., No. 19-cv-1327, 2019 WL 3555179, at *4 (N.D. Ill. July 31, 2019); see also Blair v. Nevada Landing P’ship, 859 N.E.2d 1188, 1192 (Ill. App. Ct. 2006).

The Court then analyzed the Tims decision, which held that, “when the law does not specify a statute of limitations, ‘the five-year limitations period applies’ unless the suit is one for ‘slander, libel or for publication of a matter violating the right of privacy.’” Here, the Court reasoned that an IRPA action squarely falls within the last category identified by the Court in Tims, as IRPA cases necessarily involve alleged violations of a party’s right to privacy. Finally, the Court rejected Plaintiff’s contention that Tims controls this situation, instead holding that “[u]nlike the BIPA, the IRPA protects the publication of matters related to the right of privacy and, thus, falls under the one-year statute of limitations.”

Implications for Businesses

This decision establishes a welcome pro-business standard in the Illinois privacy law context. Notably, the Illinois Supreme Court in Tims rejected the defense bar’s argument that BIPA violations were akin to privacy rights violations and subject to the one-year statute of limitations applicable to IRPA claims. This Ancestry.com decision holds that the converse also is not true. It is also the first court to reject expansion of the plaintiff-friendly five-year BIPA statute of limitations to claims beyond BIPA.

Though this decision was issued by an Illinois federal court – rather than the Illinois Supreme Court, which decided the recent Tims and Cothron v. White Castle System BIPA cases – it nonetheless offers some privacy protection for Illinois businesses that post or otherwise aggregate third parties’ content or information. We will monitor whether defendants are able to expand the Bonilla decision into other related privacy law actions, or if Illinois courts will restrict its holding to actions brought under the IRPA.