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Use of Competitor’s Name in Keyword Advertising Ruled Not a Violation of Publicity Rights – Habush v. Cannon, 2013 WL 627251 (Wis. Ct. App. Feb. 21, 2013)

Can your business competitor use your name to promote itself and never mention your name to the public?  Keyword advertising makes that possible.  A competitor can bid on keyword search terms consisting of your company name to make links to its website appear whenever a person searches for your name on the Internet.  A law firm that fell prey to such an advertising strategy decided to sue its competitor for violating its publicity rights, which is a form of invasion of privacy.

Robert Habush and Daniel Rottier are shareholders in Habush Habush & Rottier, a well-known personal injury law firm in Wisconsin.  Another Wisconsin law firm also specializing in personal injury law, Cannon & Dunphy (C&D), bid on the keyword search terms “Habush” and “Rottier” through Google, Yahoo!, and Bing.  As a result, when a person searched for “Habush” or “Rottier” in one of the three search engines, links to C&D’s website would appear at the top of the list of “sponsored” results, i.e., those links produced by keywords that been bid on and paid for by advertisers.  Sponsored results generally appear above the “organic results” generated by the search engine’s algorithm.

Habush and Rottier sued C&D for violating Wisconsin’s invasion of privacy statute.  Under the statute, a person’s privacy could be invaded  by “[t]he use, for advertising purposes or for purposes of trade, of the name . . . of any living person, without having first obtained the written consent of the person . . . .”  The main question was whether C&D engaged in a “use” of Habush and Rottier’s names.

Habush and Rottier argued that any attempt to benefit from the commercial or other value of a person’s name or image is a “use.”  Under this interpretation, C&D “used” the names of Habush and Rottier.  C&D countered that the statute covers only “use” that is visible to the public.  Under that perspective, bidding on names for keyword advertising purposes is not a “use” because the public does not see the use of the names.

The court found both interpretations reasonable, but adopted C&D’s interpretation.  The court held back from ruling that unauthorized use of a name can never be an invasion of privacy unless the use is visible to the public, but it agreed with C&D that bidding on a competitor’s name to get one’s ad placed near links to the competitor’s website in search results is not a violation of the competitor’s publicity rights.

The court analogized competitive keyword advertising to “proximity advertising.”  Examples of proximity advertising include: a new car dealership opens across the street from an established car dealership; a business advertises on billboards next to a competitor’s billboards; a lawyer places a Yellow Pages ad near the phone listing of competing lawyers.  Although a competitor is trying to take advantage of the name of an established business in each of these scenarios, none involves an impermissible “use”, such as when a competitor puts the name of an established business in its ad or on its product.  The court similarly did not see a problem with using a third party—in this case, a search engine—to engage in proximity advertising.

LegalTXTS Notes: This is a pretty novel case because most competitive keyword advertising cases are based on theories of trademark infringement or dilution.  Since Habush and Rottier are personal names, they might not have acquired sufficient second secondary meaning to qualify for trademark protection, so publicity rights was invoked as a creative alternative.

Hawai‘i has its own publicity rights statute, so would the outcome have been different had the lawsuit been filed in Hawai‘i?  Hawai‘i courts have not had the occasion to interpret the statute, but if you buy the reasoning of the court in Habush, the answer is probably not.  The Hawai‘i statute is similar enough to the Wisconsin statute for the logic of Habush to apply.

As a partner in a law firm (and therefore a business owner), I’m not sure how I feel about Habush.  I think the court rightly rejected the interpretation that any attempt to benefit from the commercial value of a person’s qualifies as a violation of publicity rights.  That’s a pretty broad proposition.  But something about the decision makes it hard to swallow.  There’s an element of deception the court doesn’t adequately address.  I wonder if, instead of claiming violation of publicity rights, Habush and Rottier could have sued under an unfair competition theory.

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The Senate Judiciary Committee of the Hawaii legislature just voted to approve the “Steven Tyler Act” (SB465), an anti-paparazzi law named after the Aerosmith lead singer, who personally showed up to testify in favor of the bill at a hearing today.  The Tyler Act, which apparently was prompted by Tyler’s experience with paparazzi near his Maui home, attracted written testimony from an assortment of celebrities including Britney Spears, Neil Diamond, Tommy Lee, and Avril Lavigne.  My favorite testimony letter was Ozzy Osbourne’s because it had a little cartoon drawing of Ozzy in the bottom right corner.

ozzy

Cartoon from written testimony on SB465 by Ozzy Osbourne, 2/6/13

The final fate of the Tyler Act remains uncertain, but now that it’s taken an important step forward, I thought I’d share my thoughts on the bill in its current form.  (The Tyler Act isn’t exactly related to technology law, but I’m blogging about it because I also practice in First Amendment, privacy, and media law.)

It’s important to understand that the Tyler Act mimics California’s anti-paparazzi law (which is currently facing its own legal challenges).  As much as legal commentators panned the California law, the Tyler Act should attract its fair share of criticism, if not more, because its language is much more loose and vague.  And that’s not good when it comes to writing a law.  You know the Aerosmith song “I Don’t Wanna Miss a Thing”?  Well, there are quite a few things the Tyler Act misses.  Here are some examples.

The centerpiece of the California law is the creation of a new tort called “constructive invasion of privacy.”  This kind of invasion of privacy is “constructive” in that it doesn’t require the defendant to have physically trespassed onto the plaintiff’s property.  Use of a “visual or auditory enhancing device” is enough.  So, a person using a telephoto zoom lens to snap pictures of J-Lo on the balcony of her home could be liable for invasion of privacy without having stepped foot onto J-Lo’s property.  The idea is that use of devices to intrude into someone’s private space is just as invasive as physically entering into their space.

The Tyler Act uses the term “constructive invasion of privacy,” but it doesn’t exactly track the theory behind the tort.  Here’s the main liability section of the Tyler Act:

A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.

See any reference to “visual or auditory enhancing device”?  There is none.  The Tyler Act says a person could commit a constructive invasion of privacy “through any means.”  A cheapie disposal camera would do it.  So would the audio recording app on your iPhone.  And if devices lacking in any “enhancement” feature do the trick to capture a “visual image, sound recording, or other physical impression of another person,” query whether there was an invasion of personal space, constructive or otherwise.  (Note that if an invasion into private space truly occurred, even in the absence of a physical invasion, Hawai‘i law already provides a remedy through the common law tort of intrusion into seclusion, which is a form of invasion of privacy.)

But the problems with the Tyler Act don’t stop there.  The Act applies when the plaintiff is engages in a “personal or familial activity.”  That language also appears in the California law, which is defined as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.”  Cal. Civ. Code § 1708.8(l).  The definition excludes “illegal or otherwise criminal activity ….”  The meaning of “personal or familial definition” is pretty vague even with that definition, but at least the California law includes a definition.  The Tyler Act doesn’t!  It’s anyone’s guess what “personal or familiar activity” means under the Tyler Act.

Similarly, the Tyler Act doesn’t define “offensive” or “reasonable expectation of privacy.”  Nor does it contain an exception for publicizing matters of “legitimate public concern,” unlike the California law.  This is problematic because it imposes liability for conduct not remotely resembling the opportunistic antics of paparazzi.  Suppose a celebrity’s Kauai mansion catches on fire, spreading flames to her neighbor’s homes.  The celebrity rushes out to the sidewalk with her kids, watching as firefighters put out the blaze.  A photojournalist arrives on the scene and takes a picture of the celebrity and her kids from across the street.  He then sells the photo to a local daily newspaper, which uses it alongside a front-page article about the fire.  That’s hardly TMZ-style content, but under the vague language of the Tyler Act, the photojournalist and newspaper could be sued for constructive invasion of privacy.

Now, you might ask, why would the newspaper be liable?  That’s because the Tyler Act says:

Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording, or other physical impression, or who subsequently retransmits, republishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:

(1)  The person had actual knowledge that the visual image, sound recording, or other physical impression was taken or captured in violation of this section; and

(2)  The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

(Emphasis added)

Imposing liability for publishing information obtained in violation of the Tyler Act runs into First Amendment problems.  Under Supreme Court precedent, the First Amendment protects speech that publishes the contents of a communication that was illegally intercepted as long as the publisher itself did nothing illegal to obtain the communication.  See Bartnicki v. Vopper, 532 U.S. 514 (2001).  Even more troubling is the Tyler Act’s authorization of courts to issue injunctions against future violations of the Act.  Since publication of information obtained in violation of the Tyler Act could itself violate the Act, a court could literally issue an order “halting the presses.”  That’s called a prior restraint, which is regarded by courts as the most offensive of First Amendment violations.

There are other problems with the way the Tyler Act is written – like the absence of an exception to liability for actions taken in a legitimate law enforcement investigation, or the fact that the Act is not limited to actions taken in Hawai‘i (unlike the California anti-paparazzi law, whose applicability is limited to actions within California) – but I think the point is made well enough.  Although the Tyler Act is well-intentioned, more thought and care needs to go into making it a clear, constitutional law that doesn’t inadvertently turn well-meaning fans, reporters, and publishers into law-breakers.

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Now that the 2013 legislative session in Hawai‘i is in full swing, let’s take a look at what new measures are in the pipeline to regulate Internet activity.  A chart of relevant information about each bill is available here.  Here’s a summary of the Internet-related proposals working their way through the legislature.

Social Media and Internet Account Passwords

A set of bills (SB207 and HB713) proposes to join other states in banning employers from asking employees or job applicants to disclose the passwords to their personal social media accounts.  Another set of proposals (HB1104 and HB1023) would extend the ban to educational institutions and their students or prospective students.

Privacy Policies

Two bills (HB39 and SB729) would make it a legal requirement for operators of a commercial website or online service to post a privacy policy on their website.

Cyberbullying

Three bills (HB1226, SB525, and HB397) would require the board of education to adopt various policies and programs to combat cyberbullying in public and charter schools.

Teacher/Student Interactions

Apparently responding to incidents in which teachers and students conducted inappropriate relationships online, HB678 would allow a teacher in a public or charter school to engage in electronic communication with a student (including cell phone calls) only on Department of Education networks and systems.

Identity Theft

SB325 would require businesses to implement a comprehensive, written policy and procedure to prevent identity theft and train all employees in implementation of the same.

Cybersecurity

HB462 would establish a statewide cybersecurity council to identify and assess critical computer infrastructure, identify cybersecurity “best practices,” recommend incentives for voluntary adoption of such best practices, evaluate the efficacy of such practices, and report annually to the legislature.

We’ll be tracking these bills, reporting on their status periodically, and posting revisions to the chart.  Stay tuned!

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Discovery of Social Media Content Relevant to “Mental State” — Reid v. Ingerman Smith LLP, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)

Plaintiff Karissa Reid sued her employer for damages resulting from alleged sexual harassment.  The defendants in the case requested discovery of information and documents relating to Reid’s social media accounts.  The defendants argued that the postings and photographs from the public portions of Reid’s Facebook account contradicted her claims of emotional distress due to her alleged sexual harassment and termination.  The defendants asked for discovery of the non-public portions of Reid’s Facebook account.

The court allowed discovery into the private portions of Reid’s Facebook account, finding that the publicly available portions of the account provided probative evidence of her mental and emotional state and could reveal the range of her activities—an important check against allegations that she no longer engaged in certain activities as a result of mental anguish.  Although disclosure of Reid’s personal social media account could raise privacy concerns, the court ruled that privacy alone does not justify shielding information from discovery.  The court cited the example of personal diaries, which are discoverable if they contain relevant information regarding contemporaneous mental states and impressions of parties.  By analogy, the fact that Reid used privacy settings to allow only certain Facebook friends to see her postings did not give her a justifiable expectation of privacy as to the content posted on her social media accounts.

The court stopped short of ordering disclosure of everything in Reid’s social media accounts.  The appropriate scope of discovery, according to the court, includes social media communications and photographs “that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling, or mental state.”