Legal Tides Changing for User-Generated Content - The FriendFinder Suit
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The first of these worrisome suits was brought by an anonymous woman against the FriendFinder Network. FriendFinder operates a multitude of dating sites. You may have heard of AdultFriendFinder; the company owns a number of less explicit dating sites as well. According to the plaintiff, FriendFinder allowed a number of “bogus” profiles to be posted to its site that could be “reasonably identified” as portraying herself. They weren’t her, of course, and they were published without her knowledge or consent. Furthermore, they were sexually explicit.
The text of the judge’s ruling on the case can be found here. The plaintiff’s complaint comprised eight parts, or counts:
- Invasion of property/intellectual property rights;
- Defamation;
- Intentional/negligent/reckless conduct;
- Dangerous instrumentality/product;
- Intentional infliction of emotional distress;
- Violation of the New Hampshire Consumer Protection Act;
- False designations in violation of the Lanham Act; and
- Willful and wanton conduct.
The case was presided over by U.S. District Judge Joseph LaPlante in New Hampshire, and the ruling was returned on March 27. It’s a lot to wade through, but if you cut to the chase – or rather the conclusion – you’ll see that FriendFinder’s motion to dismiss was granted in part and denied in part. Specifically, the seventh item, false designations in violations of the Lanham Act, stands entirely, and “Count I of the complaint is dismissed except insofar as it asserts a claim for violation of the plaintiff’s right of publicity.”
What exactly is a right of publicity? It says that a person generally has the right to control how his or her name, image, and likeness are used commercially. As it turned out, the bogus profile was apparently being used in a commercial manner. The plaintiff said that parts of the profile appeared as “teasers” on Internet search engines and advertisements on other third-party web sites – and searchers could find these teasers for the bogus profile when they entered some of the plaintiff's true biographical information.
The right of publicity, according to the New Hampshire ruling, falls under the category of intellectual property law. This is very important, and has wider implications for other web sites, because of the exceptions made by Congress when they wrote Section 230. They explicitly stated that Section 230 will have “NO EFFECT ON INTELLECTUAL PROPERTY LAW [all caps in original]. Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”
If the right of publicity falls under intellectual property rights, then all of a sudden web sites like YouTube lose some of their legal shielding. But what gives this situation real potential for messiness is that the “right of publicity” is one of the more amorphous rights, legally speaking. The laws pertaining to this right are not uniform across all 50 states, and furthermore, there isn’t a lot of good case law on that particular right. Given that the law all but runs on precedent, this could be a train wreck waiting to happen.
Next: The Roommates.com Suit >>
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