A country rap singer who was criticized by a Facebook page over his abusive treatment of his sales force brought a petition for pre-litigation discovery in Tennessee state court, seeking to identify the anonymous creator of the Facebook page so that the singer could sue for defamation. When Facebook objected, he sought to sue Facebook for defamation; it defended on the grounds of section 230 immunity. After Public Citizen agreed to represent the Doe defendant to invoke her First Amendment right to speak anonymously, the singer dropped his Tennessee defamation and refiled the suit in San Mateo County alleging several claims, including both tort and right of publicity theory. The Superior Court granted Facebook’s motion to dismiss some of plaintiffs’ claims, but declined to dismiss claims based on the right of publicity reasoning that Facebook was deriving commercial benefit from the display of advertising on pages featuring the singer’s name and likeness.
Facebook sought review in the California Court of Appeal, and Public Citizen filed an amicus brief in support. We argue that the right of publicity does not provide a cause of action for celebrities to complaint about the publication of criticism in environments that are supported by advertising or user-access fees (such as subscription payments), and that, even if such claims were allowed, they cannot be brought against online hosts of critical content posted by their users, because section 230 of the Communications Decency Act makes them immune. Such claims are not intellectual property claims (which are outside section 230’s immunity)’ regardless of whether right of publicity claims can ever qualify at intellectual property claims, lawsuits based on the impact of criticism do not vindicate intellectual property interests.
The California Court of Appeal reversed the trial court’s decision, holding that Facebook had not made a “use” of the plaintiff’s name or likeness by allowing its users to create pages discussing him or by serving advertisements adjacent to those pages. Cross sought review in the California Supreme Court, which was denied.