What a week. Just a few days after we wrote about a dangerous ruling
in a federal appeals court in California concerning a way to get around Section 230 of the CDA, now we have another problematic CDA 230 ruling from California in the form of a ruling
from San Mateo Superior Court judge, Donald Ayoob, that has the potential to do a lot of damage to Section 230 as well as anti-SLAPP efforts in California. Paul Levy has a very detailed post about the case
, but we'll try and do a summary here.
The case involves Jason Cross, a "country rap" musician who performs under the name Mikel Knight, who has apparently made a name for himself through a highly aggressive "street team"
operation that basically travels around in vans pushing people to buy Knight's CDs -- and there are plenty of accusations of sketchy behavior
around how those street teams operate, and how Cross treats the people who work for him. Apparently, Cross was not happy with a Facebook group entitled "Families Against Mike Knight and the MDRST" (MDRST standing for Maverick Dirt Road Street Team, which is what Cross calls the street team). He then used a court in Tennessee to try to get Facebook to identify who was behind the group
, and then demanded that the page be taken down. That effort is still ongoing, but has been temporarily postponed, while he then filed a separate lawsuit in California against Facebook
and whoever is behind that group, a variety of things, including breach of contract, negligent misrepresentation, negligent interference with prospective economic relations, unfair business practices and various publicity rights violations. Oddly, as Levy points out in his post, despite listing John Does as defendants, the complaint doesn't describe anything anyone did other than Facebook. However, as part of the discovery process, Cross did (of course!) ask Facebook to identify the people behind the group criticizing him.
Facebook, quite reasonably, asked the court to dismiss the case under California's anti-SLAPP law and pointed to Section 230 for an explanation of why it's immune. The ruling, unfortunately, is very, very confused. It grants some of Facebook's request, saying that Facebook didn't breach any agreement in failing to remove the group, but refuses to dismiss the publicity rights claims, stating that publicity rights are "intellectual property" and intellectual property is not covered by Section 230. The first half of the ruling does note that Facebook is not liable for the regular content on those pages and thus it was under no obligation to take them down, but then goes off the rails on the publicity rights claim.
You might wonder where there's a publicity rights claim in any of this, but it appears that Cross is arguing that because the group (a) uses images of himself (as Mikel Knight) and
(b) Facebook puts ads on those pages, that this is an abuse of his publicity rights for commercial advantage. Really.
Here, it is alleged that Facebook had knowledge since October 2014 that pages using Knight's
likeness and identity were being created on its site.... Knight states that he did not
consent to these pages or the advertising Facebook placed on them.... Facebook's
financial performance is based on its user base; accordingly, Facebook' s alleged use of Knight's
image on the unauthorized pages generates advertising revenue for the company....
Knight states that Facebook's unauthorized use of his image has resulted in substantial harm.... Accordingly, Plaintiffs have shown a probability of prevailing on their rights of
publicity claims. Because the Sixth Cause of Action is a derivative claim that may arise from either or
both the Fourth and Fifth Causes of Action, here to Plaintiffs have shown a probability of
This seems wrong on a number of different accounts. First, and most importantly, how the hell is this a legitimate publicity rights claim? Publicity rights are supposed to be about stopping companies from using an image of a famous person in a manner that suggests endorsement when the person did no such thing. It's a very, very twisted (and incorrect) notion to argue that because Facebook has some ads on the same page as a group that complains about Cross/Knight that it's violating his publicity rights. As Levy notes in his post:
If this ruling is upheld, it will blow a gaping hole in the immunity provided by section 230. Plaintiffs who are unhappy about being criticized on any platform provided by an online service provider will be able to force the removal of those materials, and without even showing that there is anything false or otherwise tortious about the criticism – all they will have to argue is that they did not give permission for the use of their names or images in the criticism and that will be enough to make out a viable legal claim against the hosting company.
That's frightening. But, as Levy also notes, this seems to clearly be a misreading of the law:
...it simply cannot be the case that a violation of the right of publicity can be found whenever someone talks about a celebrity and thereby makes a profit. People Magazine and the National Enquirer, for example, and a variety of other publications make their money writing about individuals about whom the public has an insatiable appetite for information, but they do not require the celebrities’ permission to write about them. Indeed, to the extent that the right of publicity is analogous to trademark rights, it applies when a use of the celebrity’s name and likeness creates a likelihood that consumers will believe that the celebrity has endorsed the company that used the name and likeness (analogous to the “likelihood of confusion” requirement).
The judge here is just confused.
Second, there's the question of whether or not CDA 230 should or should not apply to publicity rights claims. It is
true that CDA 230 explicitly carves out "intellectual property," but as Levy notes, there's some debate as to whether or not that applies just to federal
IP laws or if it also covers state ones. Publicity rights are a purely state law concept. Of course, I think the argument could go even further, and it could be claimed that publicity rights shouldn't even be considered intellectual property in the first place
. I already have issues with lumping copyright and patents together with trademarks as "intellectual property." But adding amorphous and ever changing publicity rights into the same bucket is problematic as well. There is no official definition of what counts as "intellectual property." This is, perhaps, more of a problem in that CDA 230 should have never created such a broad carveout (or should have at least specified "copyright" or whatever), but stretching the exemption to cover publicity rights is dangerous -- especially when courts like this one seem so confused about what's actually covered by publicity rights.
Levy also notes that there's a First Amendment issue behind all of this, in that it's pretty clear that Cross is seeking to suppress people saying things about him that he doesn't like. Levy -- who has been investigating this case to see if his organization, Public Citizen, should get involved (and his post details talking to a number of people who used to be a part of Cross's "street team") -- notes that he's intending to file an amicus brief in Facebook's inevitable appeal.
Either way, it's unfortunate that a judge would get such issues so incredibly wrong in a manner that could have a serious impact on free expression. Hopefully, the ruling is quickly reversed on appeal.