This is another people search case with another rough outcome for defendants. If the defendants in these cases don’t get relief on appeal, I don’t know how the people search and yearbook industries are going to survive.
[Note: this opinion is over 25,000 words long, which helps explain why it’s taken me until now to blog it. These people search/yearbook opinions are tough on bloggers too!]
“The question here is whether the CDA immunizes Defendants’ from being held liable for Plaintiffs’ claims that they violated California’s and Alabama’s right of publicity statutes by displaying Plaintiffs’ names and corresponding information as a ‘teaser’ to sell subscriptions to access their database.”
ICS Provider. “‘Instant Checkmate’ is a website. Even more so, millions of users could set up an account on the Website, which Defendants operate, own, and created, to acquire ‘access to a database containing proprietary ‘detailed reports’ about people to anybody willing to pay for a monthly subscription.’”
Publisher/Speaker Claims. “Plaintiffs’ right of publicity claims seek to impose liability for Defendants’ use of their identities in creating advertisements on the Website.” The court doesn’t expressly acknowledge that publicity rights claims are covered by 230 in the Ninth Circuit (see ccBill), but it proceeds as if that’s the case.
Third-Party Content. First two elements went OK for the defendants. Then, ugh:
Here the original content Defendants draw from for their advertisements, even if that is in response to a user’s search input and a subsequent algorithmic response, is problematic. As alleged in the Complaint, the information provided in Defendants’ “teasers” is not uploaded directly by third party users, rather the content is compiled and generated by Defendants. In fact, the allegations are such that no Website user generates any content. As such, Defendants are at least responsible “in part” for creation or development of the content on the website, specifically the “teasers.” Thus, Defendants fall on the side of having “materially contributed” to the website’s content such that they are responsible for the display of the alleged actionable content….
Similar to the case in Lemmon, the basis of the present case is not whether the third-party content Defendants found is itself subject to violation of the California and Alabama right of publicity statutes, but whether Defendants’ compilation of the information and their use on the website in the form of “teasers” to promote subscription services is a violation of the right of publicity statutes….Defendants’ alleged actions in compiling and using Plaintiffs’ and other’s information without consent is what is alleged to be illegal or actionable. Essentially, Defendants are being sued for allegedly gathering information about Plaintiffs, and others, without their consent and displaying it on the Website to promote a subscription service. Defendants produced the offending content, and the “teaser” is not just content passively displayed by another party. It is Defendants’ alleged use and display of Plaintiffs’ and other’s information that is at issue in the case. The CDA cannot shield Defendants from liability for such claims
As we’ve discussed before, Section 230 applies to third-party content, whether or not it was uploaded by a “user” or “compiled” by the service. If that’s not the law, then Google Search categorically doesn’t qualify for Section 230.
The First Amendment
The court says the teasers are commercial speech:
Plaintiffs’ name, identifying information, and likeness is alleged to be used by Defendants for the purpose of enticing users into subscribing to Defendants’ services. Plaintiffs are not challenging the use of their likeness on the entire Website itself, but rather they seek to prevent use of their likeness in conjunction with advertisements for Defendants’ services
I think this is true, but note that it may be impossible to market the database without providing an explanation of what it contains. That’s why, for example, book titles are usually exempted from publicity rights claims, whether that’s by a statutory exclusion or the First Amendment. In a different case involving Zoominfo, Rebecca Tushnet and Mark Lemley will be filing an amicus brief on this point.
The court then says the CA and Alabama publicity rights statutes survive the Central Hudson intermediate scrutiny test. The court identifies the states’ substantial interests “in protecting its citizens from non-consensual commercial use of another’s information—both arguably property and privacy interests,” and the statutes “provide broad exemptions related to newsworthiness and matters of public affairs or interest.”
Dormant Commerce Clause
The laws survive the Pike balancing test: “this is simply not a case where the states’ statutes preclude economic activity or directly control commerce that occurs wholly outside of California or Alabama.”
The Prima Facie Case
On the question of whether the defense made a commercial use of the plaintiff’s name, the court says:
The core of the present case concerns Defendants’ “teasers,” which are not entire profiles, and not the profiles on the Website. As alleged in the Complaint, use of Plaintiff Cotta’s identity in “teasers”—which advertise a subscription service that provides access to unlimited reports—is certainly promotional…the “teasers” intentionally withhold information about the searched-for person with the purpose of attracting a user to subscribe to Defendants’ service. This is surely an adequately alleged commercial purpose
Case citation: Camacho v. The Control Group Media Co. LLC, 2022 WL 3093306 (S.D. Cal. July 18, 2022). The complaint.
BONUS: For more of the same (involving the “Inmate Searcher” website on a motion to dismiss), see Gaul v. Truth Now, LLC, 2022 WL 3647257 (C.D. Ill. Aug. 24, 2022).
Prior blog posts on Yearbook and Related Cases