Singer’s Action Against Facebook Was a SLAPP

Thursday, August 10, 2017

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Court of Appeal Finds:

Singer’s Action Against Facebook Was a SLAPP

First District Says Use of Name and Photos on a Web Page Is Not a Violation of the Plaintiff’s Right of Publicity Simply Because Ads Are on the Same Page

By a MetNews Staff Writer

Above is a van, part of a fleet, used in the promotion and sale of goods relating to country rap singer Mikel Knight. The Court of Appeal yesterday held that Knight’s entire action against Facebook based on third party criticisms of him was subject to dismissal under the anti-SLAPP statute.

The anti-SLAPP statute extends to causes of action stemming from the unauthorized use of the name and likeness of a performer on a webpage containing advertising, provided the ads are peripheral to the use in connection with the discussion of a public issue, the First District Court of Appeal held yesterday.

The opinion, by Justice James A. Richman of Div. Two, affirms the San Mateo Superior Court Judge Donald J. Ayoob’s dismissal of country rap singer Mikel Knight’s causes of action against Facebook for breach of written contract, negligent misrepresentation, and negligent interference with prospective economic relations. It reverses the trial court’s denial of Facebook’s anti-SLAPP motion with respect to causes of action for breach of the statutory right of publicity, common law right of publicity and the Unfair Competition Law.

Ayoob held that the first three causes of action are barred by the Communications Decency Act (“CDA”)—which provides that an “interactive computer service” is not liable for third party content—but the last three are not covered. The act specifies: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”

All causes of action, Richman said, are precluded, under the act.

Knight’s lawsuit stems from a Facebook page posted by “Families Against Mikel Knight, “excoriating the entertainer based on two accidents—one on June 9, 2014, the other one week later—caused by the driver of one of the performer’s “Maverick Dirt Road Street Teams” vans falling asleep at the wheel. Two passengers died in the second mishap.

The vehicles, driven by independent contractors, are used for sales of Mikel Knight merchandise, including CDs.

First Prong

Richman had no difficulty in finding that the first prong of the anti-SLAPP statute—that the action stems from an act “in furtherance of the...right of petition or free speech”—was met. He said:

“As the trial court explained, the pages to which Knight objected discussed incidents involving contractors hired by plaintiffs, contractors who ‘fell asleep behind the wheel in two separate incidents, resulting in fatal collisions.” And as the trial court concluded, “It is not a far stretch to say that such incidents, and the circumstances leading to them, are matters in which the public would be interested.’ Putting it slightly differently, the issue involved the danger of trucks on highways driven by sleep-deprived drivers. And as to this, Google searches for tired truck drivers reveals millions of results. It is an issue of tremendous concern.”

As to the second prong—unlikelihood of the plaintiff prevailing—Richman disagreed with Ayoob’s assessment that Knight might prevail in connection with the use of his name and likeness.

The trial judge viewed the use as being for a commercial purpose based on the presence of ads on the pages. Richman drew the distinction that Facebook did not use Knight’s identity.

Third-Party Ads

He wrote:

“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 first three causes of action stemmed from Facebook’s delay in disabling the offending page, in alleged violation of it “terms of service.” Knight insisted he was not seeking to hold Facebook liable for utterances of third parties, which the CDC would preclude, but based on its own conduct by not taking the pages down.

“[N]umerous courts have held the CDA bars claims based on a failure to remove content posted by others,” Richman said.

He also declared:

“[T]here was much language in Facebook’s terms and conditions providing for Facebook’s discretion vis-à-vis content on its pages. But even if statements in Facebook’s terms could be construed as obligating Facebook to remove the pages—which plaintiffs have not demonstrated—it would not alter the reality that the source of Knight’s alleged injuries, the basis for his claim, is the content of the pages and Facebook’s decision not to remove them, an act ‘in furtherance of the...right of petition or free speech.’ ”

Richman added:

“[T]here was no commercial benefit to Facebook from the use of Knight’s likeness. Simply, the appearance of advertisements next to a third party’s use of Knight’s identity is insufficient to demonstrate a commercial use by Facebook. It has not benefited Facebook in any actionable way.

The case is Cross v. Facebook, Inc., A148623, A149140.