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Google acted as a “publisher” for CDA purposes for including third-party content in search results — Mmubango v. Google, Inc., 2013 WL 664231 (E.D. Pa. Feb. 22, 2013)

Google successfully obtained dismissal of a defamation lawsuit filed by a person (Mmubango) who found derogatory comments about him posted online.  Mmubango discovered anonymous statements about himself on the “Wikiscams” website.  Mmubango asked Google to remove the statements from its search engine and to give him information about the poster of the comments.  Google refused.

Mmubango sued Google and others for defamation, and Google defended by moving to dismiss the claim based on Communications Decency Act (CDA) immunity.  The federal district court for the Eastern District of Pennsylvania agreed that Google met the requirements for CDA immunity.  First, Google is an interactive computer service provider.  Second, Google did not author the allegedly defamatory content, but instead, was provided with it by another information content provider (i.e., Wikiscams).  The defamation claim alleged that  Google was liable for storing and broadcasting the derogatory comments about Mmubango.  Third, Mmubango was seeking to treat Google as the publisher of third-party statements.  Deciding whether to provide access to third-party content or, alternatively, to delete the content is an act of publishing.  Under section 230 of the CDA, Google could not be held liable for defamation based on its decision to publish a third party’s statements.  The court dismissed Google from the case.

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Use of Competitor’s Name in Keyword Advertising Ruled Not a Violation of Publicity Rights – Habush v. Cannon, 2013 WL 627251 (Wis. Ct. App. Feb. 21, 2013)

Can your business competitor use your name to promote itself and never mention your name to the public?  Keyword advertising makes that possible.  A competitor can bid on keyword search terms consisting of your company name to make links to its website appear whenever a person searches for your name on the Internet.  A law firm that fell prey to such an advertising strategy decided to sue its competitor for violating its publicity rights, which is a form of invasion of privacy.

Robert Habush and Daniel Rottier are shareholders in Habush Habush & Rottier, a well-known personal injury law firm in Wisconsin.  Another Wisconsin law firm also specializing in personal injury law, Cannon & Dunphy (C&D), bid on the keyword search terms “Habush” and “Rottier” through Google, Yahoo!, and Bing.  As a result, when a person searched for “Habush” or “Rottier” in one of the three search engines, links to C&D’s website would appear at the top of the list of “sponsored” results, i.e., those links produced by keywords that been bid on and paid for by advertisers.  Sponsored results generally appear above the “organic results” generated by the search engine’s algorithm.

Habush and Rottier sued C&D for violating Wisconsin’s invasion of privacy statute.  Under the statute, a person’s privacy could be invaded  by “[t]he use, for advertising purposes or for purposes of trade, of the name . . . of any living person, without having first obtained the written consent of the person . . . .”  The main question was whether C&D engaged in a “use” of Habush and Rottier’s names.

Habush and Rottier argued that any attempt to benefit from the commercial or other value of a person’s name or image is a “use.”  Under this interpretation, C&D “used” the names of Habush and Rottier.  C&D countered that the statute covers only “use” that is visible to the public.  Under that perspective, bidding on names for keyword advertising purposes is not a “use” because the public does not see the use of the names.

The court found both interpretations reasonable, but adopted C&D’s interpretation.  The court held back from ruling that unauthorized use of a name can never be an invasion of privacy unless the use is visible to the public, but it agreed with C&D that bidding on a competitor’s name to get one’s ad placed near links to the competitor’s website in search results is not a violation of the competitor’s publicity rights.

The court analogized competitive keyword advertising to “proximity advertising.”  Examples of proximity advertising include: a new car dealership opens across the street from an established car dealership; a business advertises on billboards next to a competitor’s billboards; a lawyer places a Yellow Pages ad near the phone listing of competing lawyers.  Although a competitor is trying to take advantage of the name of an established business in each of these scenarios, none involves an impermissible “use”, such as when a competitor puts the name of an established business in its ad or on its product.  The court similarly did not see a problem with using a third party—in this case, a search engine—to engage in proximity advertising.

LegalTXTS Notes: This is a pretty novel case because most competitive keyword advertising cases are based on theories of trademark infringement or dilution.  Since Habush and Rottier are personal names, they might not have acquired sufficient second secondary meaning to qualify for trademark protection, so publicity rights was invoked as a creative alternative.

Hawai‘i has its own publicity rights statute, so would the outcome have been different had the lawsuit been filed in Hawai‘i?  Hawai‘i courts have not had the occasion to interpret the statute, but if you buy the reasoning of the court in Habush, the answer is probably not.  The Hawai‘i statute is similar enough to the Wisconsin statute for the logic of Habush to apply.

As a partner in a law firm (and therefore a business owner), I’m not sure how I feel about Habush.  I think the court rightly rejected the interpretation that any attempt to benefit from the commercial value of a person’s qualifies as a violation of publicity rights.  That’s a pretty broad proposition.  But something about the decision makes it hard to swallow.  There’s an element of deception the court doesn’t adequately address.  I wonder if, instead of claiming violation of publicity rights, Habush and Rottier could have sued under an unfair competition theory.

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A $22.5 million settlement of FTC’s charges that Google secretly used cookies to track the activity of Safari users gained court approval last week.  The charges were based on an earlier settlement of charges that Google used the private information of Gmail users for its Buzz social network.  The FTC and Google settled those charges in October 2011 with a consent order prohibiting Google from future misrepresentations regarding (1) its collection and use of private information and its customers’ control over that information; and (2) its membership and compliance with privacy or security programs.

The FTC alleged that Google violated the Buzz consent order by assuring Safari users that the browser’s default settings would block Google tracking cookies, but overriding Safari’s blocking software and secretly collecting cookies from Safari users.  The FTC also alleged that Google’s use of Safari cookies without informing its users violated the code of conduct of the Network Advertising Initiative, of which Google represents it is a member.

The court approved the proposed consent order settling those charges in a decision issued last Friday (read the decision here).  The proposed consent order would require Google to pay a civil penalty of $22.5 million—the most a company has ever paid for violating an FTC order.  Google must also maintain systems that delete Google cookies from Safari browser users and report to the FTC on compliance with the consent order.  The consent order does not require Google to admit that it violated the Buzz consent order, however.

Amicus curiae Consumer Watchdog objected to the proposed consent decree on the grounds that it did not impose a permanent injunction on Google, that the $22.5 million penalty was too small, and that Google should be required to admit liability.  Judge Susan Illston of the U.S. District Court for the Northern District of California rejected Consumer Watchdog’s arguments, finding the settlement “fair, adequate and reasonable.”

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Google has lost a domain name arbitration against the owner of Oogle.com.  According to a report by the Domain Name Wire, Google charged the registrant of Oogle.com with cybersquatting.  Google was not happy that the domain name, which someone intending to visit its popular search engine could easily type in by mistake, points to porn sites.  It didn’t help either that Oogle.com was being offered for sale on a common domain name auction site for $300,000.  In his defense, the registrant argued that he registered the name before the Google mark was registered and gained popularity, although there is a dispute about whether a Whois search corroborates that.  The registrant also swore in a declaration that he registered the domain name because he was acquainted with a programmer who used the handle “Oogle” or “Criminal Oogle.”

The National Arbitration Forum panel expressed “extreme suspicions” about the registrant’s explanation, but ultimately found that Google failed to prove bad faith registration of the domain, which is required to obtain an order canceling or transferring a domain name.  So, the registrant can keep his name for now.  The panel did suggest that discovery in a legal proceeding could uncover evidence of bad faith.  Read the full decision here.

LegalTXT Lesson: Domain names can be valuable for branding purposes, so it’s important to brainstorm about  what typo-variations of your registered domain that you should also register.  At the same time, there are endless ways a domain name can be mis-typed, so one can only do so much (plus, being overzealous in registering domain names could in turn expose you to cybersquatting claims).  Still, considerable thought should be given to registering obvious typos, especially those with a salacious ring to it — like oogle, which does not require much imagination to associate with “adult” content.