California case from early 2016 on “right of publicity” could endanger practical use of Section 230 with user generated content; so can Backpage

There is a dangerous controversy brewing in a case, Jason Cross aka Mikel Knight v. Facebook, complaint. (Jason Cross is the stage name for Mikel Knight.)

Cross filed what seems to be a SLAPP suit against Facebook, after a variety users made criticisms of the rap singer’s operations on Facebook.  A trial court in California state court dismissed most of the claims (rather like “tortious interference” in Michael Mann’s 1999 film  “The Insider” about the tobacco industry) in May 2016 under Section 230 and California SLAPP, but allowed a claim that Facebook may have violated Cross’s “right of publicity” to stand (May 2016 ruling )  outside of Section 230 intermediary safeguards.  The actual trial has not yet taken place, and Facebook has appealed the case to a California court of appeals.

The application of right of publicity in this context seems bizarre.  The complaint is not against the user, but against Facebook itself for placing ads, which might be chosen in a manner related to the user’s content, on the page (or mobile display) next to the postings.  The theory is that the advertiser somehow benefits from the fame of the artist.

A much more common use of the right of publicity tort has to do with using the likeness of a famous person directly for commercial purposes, as in your own ad.  There would seem to some theoretical scenarios where some user content (as on a blog or hosted site) from an “amateur” draws more attention because the likeness of the public figure is on the page.  This would be more problematic if the blogger somehow implied that the public figure had endorsed the use of the public figure in the user’s content.  An amateur user, who had not “competed” or “paid his dues” in the usual sense, could leverage his own chance for become better known for his own work by first drawing on the famous person as someone to be compared to.  Possibly, providing multiple reviews of the work of the famous person could get viewed this way.  On the other hand, generally amateurs have a “right” to review all the works of any particular celebrity or better known person separately.

On it’s face, however, this very posting, because it shows the real person in the explanatory YouTube video below next to an ad, could be viewed as a “right of publicity” violation of that person, it taken very literally.  Theoretically, I sift off some undeserved ad revenue from that person’s being more deserving of fame than me.  I think even Milo (Breitbart) would think this is a ridiculous argument.

The biggest concern in the legal community is that the lower court’s preliminary ruling seems to gut the use of Section 230, allowing litigation (at least in California) whenever the substantial mention of a real-life celebrity (or conceivably any living person or even estate) in physical proximity to ads (for example, as served by Google Adsense) could prove tortious, even if the ads were not directly related to the user content.  There are multiple discussions of this case,  one by Paul Alan Levy from June 2016 here and a more detailed one today by Daniel Nazer at Electronic Frontier Foundation, “EFF to Court: Don’t Let the Right of Publicity Eat the Internet” with the amicus brief here.

It will take a long time for this case to work its way up.  Note that Facebook users are not named as defendants.  EFF makes arguments about whether “right of publicity” is really about intellectual property or about (ironically) “privacy” (or perhaps unwanted attention), or even false advertising.

Donald Trump seems hostile to amateur content, even though he uses Twitter himself.  He acts like the thinks that the winners have to keep the losers or “the Proles” in line.

Update: January 12, 2017

Electronic Frontier Foundation has a sobering article about Backpage today. One of the points is that Section 230 protects service providers as long as they don’t create or modify the illegal content (which Backpage may be doing, get back to that in a moment). Cope had already discussed the SAVE Act in January 2015 (article). Nicholas Kristof touched on sex-trafficking, Backpage (and ad modification) in an op-ed in the New York Times January 12.

Backpage closed down its adult section (reportedly) under pressure of Senate hearings very recently (Techdirt story with “censored” graphic). It looks like they took the 5th in Senate hearings (USA  Today story). I wrote a “Twitter storm” about this early 1/13 (and also a big Facebook post). ABC Nightline aired a scathing report early 1/13 here.  The Los Angeles Times offers an instructive comparison to how Backpage and Airbnb invoke Section 230 here.  According to news sources, Section 230 was also used to drop criminal charges against the CEO after an arrest (story).  Daily Beast has a (libertarian) perspective on why “banning Backpage” would actually endanger more women.

We have a new president who is not sympathetic (“no computer is safe”) to the spontaneity of they way many users express themselves with UGC (user-generate content), not only in social media but blogs and personal sites;  he sees these as not “local” or not “real life” or evasive of competing like adults with real responsibilities for dependent families. That’s one reason why the coincidence of two problems (publicity and trafficking) occurring at the same time in the media (on the same blog post by me, at least)  seems really ready to push Section 230 down a slippery slope, and with it the whole business model for much of today’s Internet (most of all social media). And it’s only one week until the inauguration as I write this.

However, it should be possible to question whether ads could be handled differently by the law than non-commercial user posts.  It would also seen that the reported behavior of modifying ads could nullify Section 230 protection even as current law stands.

I note on YouTube that since credit card companies have voluntarily given Backpage official shunning, users are fleeing to bitcoin to use the site.

I do agree with Ashton Kutcher (“A+K”) that “real men don’t buy girls” (or boys).  I wish Kutcher were president right now instead of Trump.

(Posted: Tuesday, January 10, 2017, at 11 PM EST)