Interactive service providers can breathe a little easier now since the California Supreme Court has decided not to disturb an August 9, 2017 decision by the California Court of Appeals applying Communications Decency Act (“CDA”) Section 230 protections for interactive service providers to right of publicity claims. A California Superior Court judge’s decision not to dismiss a right of privacy claim threatened to create another vulnerability in CDA Section 230 protections for website hosts. While the Superior Court judge properly applied Section 230 to many of these claims, the judge’s decision that Section 230 does not apply to right of publicity claims could have opened the door to further lawsuits seeking to stifle online criticism. Fortunately, the California Court of Appeals’ decision to reverse the Superior Court remains the law in California.
Cross v. Facebook should have been a simple CDA Section 230 defense win for Facebook against a musician attempting to silence critics. Jason Cross, a musician that performs under the alias of “Mikel Knight”, has been subjected to criticism for alleged mistreatment of his sales team. Cross filed a lawsuit in Tennessee against both the critics and Facebook. Cross also sued Facebook in California seeking removal of critical Facebook pages and identification of those responsible for the Facebook pages. Ordinarily, such attempts to attack a social network for a user’s exercise of their free speech rights would be prevented by the Communications Decency Act, Section 230. CDA Section 230 shields interactive service providers (“ISP”) from liability based on user-generated content when the ISP acts as a passive conduit for people to post their ideas. Section 230 is considered crucial for online free speech, as requiring website hosts to review and censor all user content would limit the ability to provide open forums for users and would have chilling effects on user speech.
Cross’ complaint against Facebook regarding the negative user content was only remarkable for the result. The Superior Court rejected Cross’s other charges against Facebook for breach of contract, negligent misrepresentation, negligent interference with economic advantage, and promissory estoppel. The surprise came when the Superior Court determined Cross could prevail in his claims that Facebook made commercial use of Cross’s name and likeness by placing advertisements on a web page hosting critical content. The Superior Court stated that a person’s publicity rights are intellectual property under state law, and intellectual property infringement claims are not protected by the CDA. The trial court’s holding indicated that any speech on social media that was about a real person and that was published on a website containing advertising could be subject to a right of publicity claim. In so deciding, the Superior Court failed to follow well-established First Amendment limits to the right of publicity and the immunities granted by the CDA.
The Appeals Court rejected these assertions, also noting Cross’s publicity right complaints did not apply to Facebook since the web page advertisements did not use Cross’s name or likeness, and Facebook neither created nor was promoted by any of the posted advertisements. While the Appeals Court did not address Facebook’s First Amendment claims, it did require Cross’s complaint be dismissed and required Cross to pay Facebook’s attorney fees for defending of the lawsuit under California’s anti-SLAPP laws. These laws were created to discourage “strategic lawsuits against public participation” where a meritless lawsuit is filed to stifle speech regarding an issue of public interest. While 2017 has seen a number of cases eroding the protections provided by Section 230 of the Communications Decency Act, Cross v. Facebook ensures that a mere right of publicity complaint will not be enough to strip an ISP of its protections.