The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.
The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?
Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.
Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.
Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight‘s name and likeness to critique his business practices—and their allegedly fatal consequences. While Knight claims that ―Facebook continues to place ads on all the unauthorized Facebook pages, he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties.
The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.
In sum, the evidence demonstrates that Facebook has not used Knight‘s identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation.
The court still isn't done:
Knight has not even alleged—let alone shown—that any advertiser used his name or likeness. He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity. Indeed, the evidence Knight submitted below demonstrated either that no advertisements appeared alongside the pages at issue, or that the advertisements that did appear adjacent to the content posted by third parties made no use of his name or likeness. At most, Knight has shown that Facebook allowed unrelated third-party advertisements to run adjacent to pages containing users‘ comments about Knight and his business practices. This is insufficient.
The court chooses not to address the more basic issue of publicity rights under CDA 230.
The rest of the ruling is interesting in its own right, as Cross had also appealed the parts upholding Facebook's anti-SLAPP motion, but fails badly. The court notes that it's fairly obvious that the issue involves a topic of public interest, despite Cross's claims to the contrary. And then there are some weird claims attempting to piggyback on the Barnes v. Yahoo case from years back, in which Yahoo lost its 230 immunity because an employee directly promised to remove certain content. Cross tried to argue that Facebook's terms of service promise it, too, will remove content. But... that's very different, and not what Facebook's terms of service actually say. Separately, Cross claims (to make Barnes more applicable) that Facebook privately did communicate to him that it would remove content. The court's not buying it (neither did the lower court):
Contrary to Knight‘s assertions, the complaint does not arise from "private" statements or promises made to Knight in Facebook's terms. Indeed, similar arguments made by other plaintiffs against Facebook have been rejected by district courts, in language directly applicable here: "while Facebook‘s Terms of Service 'place restrictions on users‘ behavior,' they 'do not create affirmative obligations‘ " on Facebook....
Plaintiffs' brief states that "As a requirement to signing up for Facebook, Mr. Knight had to accept Facebook's Terms of Service. Among other things, the Terms of Service—along with certain 'supplemental terms' specifically incorporated by reference—prohibited harassing and violent speech against Facebook users. These supplemental terms also made an explicit promise to Knight: 'We remove credible threats of physical harm to individuals.' Facebook also stated that '[w]e want people to feel safe when using Facebook,' and agreed to 'remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety.'"
As will be seen, there was much language in Facebook's terms and conditions providing for Facebook's discretion vis-a-vis content on its pages. But even if statements in Facebook's terms could be construed as obligating Facebook to remove the pages—which plaintiffs have not demonstrated—it would not alter the reality that the source of Knight's alleged injuries, the basis for his claim, is the content of the pages and Facebook's decision not to remove them, an act "in furtherance of the . . . right of petition or free speech."
The court also dings Cross for claiming that Facebook's terms say stuff they do not:
...even if Facebook's terms and community standards were the relevant statements or conduct at issue here, Knight has not identified any "representation of fact" that Facebook would remove any objectionable content. Indeed, the actual terms are to the contrary, providing in essence that Facebook has the discretion to remove content that violates Facebook policies. By way of illustration, the terms include that: "We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies." The terms also make clear that Facebook is not responsible for "the content or information users transmit or share on Facebook," for "any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook," or for "the conduct, whether online or offline, of any user of Facebook." As Facebook sums it up, "We do our best to keep Facebook safe, but we cannot guarantee it."
So, in the end, this is a good result, tossing out last year's bad ruling, though skipping over the CDA 230 question. And, as Eric Goldman notes, that keeps things at least a little murky:
Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.