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Facebook Displaying Ads on Page Not Sufficient for Right of Publicity Claim

(August 11, 2017) Facebook did not violate a country-rap singer’s right of publicity by allowing third parties to place ads on pages that contained critical comments about the singer.

Country rap artist Mikel Knight, whose real name is Jason Cross, sued Facebook alleging six causes of action. Three of the causes of action were dismissed by the trial court in an anti-SLAPP hearing, when the court found Facebook was protected under the Communications Decency Act (“CDA”) because it was a provider of an interactive computer service. The trial court found the remaining three causes of action relating to common law right of publicity were not covered by the CDA and could proceed.

A California appeals court agreed with the trial court regarding the CDA but reversed the trial court on the common-law right-of-publicity claims and dismissed those claims too.

The case stems from two separate accidents within a week involving vans driven by independent contractors who were promoting Knight. Two persons died in the accidents when the drivers fell asleep. After the accidents, a Facebook page called “Families Against Mikel Knight” was created. Knight demanded Facebook take down the page, but it refused. Knight contended that the failure to take down the page violated Facebook’s terms and community standards and Knight’s right of publicity.

The trial court found that Facebook met the anti-SLAPP requirements that the Facebook pages were “public forums” and the content of the pages “concern public issues or issues of public interest.” In addition, the trial court found the CDA protected Facebook because it is an “interactive computer service” and the content of the pages were provided by a third party.

As to the common law right of publicity claims, the trial court said the CDA did not ban them because they were “intellectual property” claims that fall outside the coverage of the CDA. The trial court found that Knight “had shown a probability of prevailing on his right of publicity claims because he alleged that Facebook ran advertisements adjacent to the ‘unauthorized’ pages critiquing Knight and his business practices.” The appellate court disagreed and threw out the claims.

The appellate court reasoned the problem with the claims was Knight failed to “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.” Merely displaying the ads is “insufficient” to state a common law cause of action.

“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 appellate court wrote. As a result, failed to demonstrate a commercial use by Facebook because Facebook received no benefit.

Jason Cross et al, v. Facebook, Inc., Calif. App. Ct., First District Nos. A148623 and A 149140, issued August 9, 2017.