Almost all posts on social media include depictions of real people. And most social media websites include advertising. Does this combination mean that nearly everyone featured on social media can sue for infringement of their right of publicity? That would be disruptive. Fortunately, a new ruling [PDF] by the California Court of Appeal confirms that more is needed for a right of publicity claim. This is a big win for free expression online.
The decision comes in a case called Cross v. Facebook. The case was brought by a country-rap artist who performs under the stage name Mikel Knight. He promotes his music using “street teams” that sell CDs out of vans. After these vans were involved in several accidents(causing two deaths), Knight was accused of pushing his sales teams too hard and creating an unsafe environment. Some Facebook users created a page called ‘Families Against Mikel Knight’ where ex-street team members and others could comment on Knight’s operation.
Knight filed a lawsuit against Facebook asserting a collection of claims, including one for infringement of his right of publicity. Facebook responded with an anti-SLAPP motion seeking to dismiss the complaint. Since Knight was effectively trying to hold Facebook liable for content posted by users, the court correctly dismissed most of Knight’s claims as barred under CDA 230. But the superior court did allow Knight’s right of publicity claim to proceed. The right of publicity is supposed to prohibit unauthorized commercial use of a person’s identity. The court reasoned [PDF] that Facebook had “used” Knight’s likeness because his image appeared on pages that also included advertisements.
If allowed to stand, the superior court’s ruling would have threatened a huge range of online expression. It would have effectively given people a veto right over speech about them that they didn’t like (as long as that speech appeared on a platform with advertising). This would undermine long-standing limits on defamation law and protections for online intermediaries.