Tort Cases IM 350: Intellectual Property Law and New Media Class 18 October 29, 2015

Tort Cases

IM 350: Intellectual Property Law and New Media

Class 18October 29, 2015

Hadley v. Doe2015 IL 118000 (June 18, 2015)

• Newspaper publishes article about local politician, Hadley’s, return to politics.

• Anonymous commentator, “Fuboy,” posts comments on the paper’s site:– “Hadley is a Sandusky waiting to be exposed. Check out the

view he has of Empire [an elementary school] from his front door.”

– “Anybody know the tale of Hadley’s suicide attempt? It is kinda ‘It’s a Wonderful Life’ with Pottersville win[n]ing out. We can just be happy that Stephenson County is fortunate enough to have this guy want to be of ‘service’ again.”

Hadley v. Doe2015 IL 118000 (June 18, 2015)

• Hadley sues “John Doe” for defamation and files a “petition for discovery” against Comcast to learn identity of “Fuboy.”

• Trial court grants petition for discovery. Finds that “Sandusky” comment was defamatory per se.

• Fuboy appeals.

Hadley v. Doe2015 IL 118000 (June 18, 2015)

• Illinois Appellate and Supreme Courts affirm trial court.

• Supreme Court – Hadley met his burden of showing that his defamation claim could withstand a motion to dismiss.

• Fuboy’s Sandusky statement imputes commission of a crime to Hadley, even though Fuboy did not explicitly state Hadley was a pedophile

• At the time of Fuboy’s post, the Sandusky scandal dominated the national news.

Mug Shots Galore

Mug Shots Galore

• Mug shots used to be “public” in theory but not practice

• Now they are big business• Publishers obtain mug shots and create

searchable databases• Subjects who are “not guilty” are offered

opportunity to pay publisher to remove photo• Waive of legislative initiates to curb exploitation

of mug shots

Section 230 – Website Solicited ContentJones v. Dirty World Entertainment, 755 F.3d 398 (6th Cir. 2014)

Summary from the Digital Law Media Project: http://www.dmlp.org/threats/jones-v-dirty-world-llc#description

Jones v. Dirty World Entertainment, 755 F.3d 398 (6th Cir. 2014)

• High school teacher and former cheerleader is subject of unwelcome posts on www.The Dirty.com

• Site operator contributes some commentary• Trial court says TheDirty is a publisher and not

immune under Section 230• Teacher wins $38,000 in actual damages and

$300,000 in punitive damages at trial

Jones v. Dirty World Entertainment, 755 F.3d 398 (6th Cir. 2014)

• On appeal, Sixth Circuit reverses district court on Section 230

• Sixth Circuit held district court erred in finding that the website operators were the “creators” or “developers” of the content at issue and also erred in adopting an “encouragement test of immunity under the CDA”

Jones v. Dirty World Entertainment, 755 F.3d 398 (6th Cir. 2014)

• Richie and TheDirty.com did not author the statements at issue, even though they selected them for publication.

• Jones had not alleged that Richie’s own editorial comments were defamatory.• Failing to remove the defamatory content could not be found to materially

contribute to the content. The CDA expressly bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.”

• Richie and TheDirty.com did not require users to post illegal or actionable content as a condition of use.

• The name of the website does not suggest that only illegal or actionable content will be published.

• Richie and TheDirty.com did not pay users to submit unlawful content.• The website’s content submission tools were neutral in both orientation and

design as to what third parties submit.

Libel Suits Against Rating Websites Grand Hotel Resort v. TripAdvisor., 11-cv-549 (E.D. Tenn. Aug. 22,

2012)

Grand Hotel Resort v. TripAdvisor., 11-cv-549 (E.D. Tenn. Aug. 22, 2012)

• District Court grants TripAdvisor’s motion to dismiss– “Dirtiest Hotels” is non-actionable opinion –

unverifiable rhetorical hyperbole

Rights of Publicity and Social Media

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• Background– FB launches “Sponsored Stories” on 1-25-11– When FB users “like” a product, their names and

images automatically appear on “friends” pages under “Sponsored Stories”

– With the launch, FB updated its terms:• Users give FB “permission to use your name and [FB]

profile picture in connection with commercial, sponsored, or related content. . .”

– Zuckerberg touts product:• “Nothing influences people more than a recommendation

from a trusted friend”• “A trusted referral is the Holy Grail of advertising.”

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• Consumer class action filed in the Northern District of California

• Class: all people who registered to use FB as of 1-24-11 and whose names, photographs, likenesses were used in Sponsored Stories

• Claims:– Violation of California Right of Publicity statute– Violation of California Unfair Competition statute– Common law unjust enrichment

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• FB files motion to dismiss under 12(b)(1) and 12(b)(3)– Lack of Article III standing– Immunity under Section 230 of CDA– Failure to state a claim

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• Ruling on MTD – No immunity under Section 230 of CDA

• While FB was an “interactive computer service,” its conduct of creating a “like” button and publishing user’s names and images as sponsored stories made it an “information content provider.”

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• Ruling on MTD (cont’d)– Right of Publicity – MTD denied

• Not newsworthy• Fact issue on consent• Sufficient allegation of injury

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• Case settles after ruling on motion to dismiss.• FB pays $20 million into settlement fund • FB changes certain terms of use

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

• Take-away from case:– Use of users’ names and likenesses for commercial

endorsement purposes in social media poses risk of ROP claims.

– Obtaining consent by changing terms of use may mitigate claims, but perhaps only prospectively.

Perkins v. LinkedIn, 13-cv-4303 (N.D. Cal.)

• Plaintiffs accuse LinkedIn of hacking into their emails and sending multiple messages to harvested email addresses to invite people to join

• Plaintiffs accuse LinkedIn of improper use of names, photographs, likenesses, and identities of Plaintiffs for the purpose of generating substantial profits for Linkedln

Celebrity Tributes

Jordan v. Jewel

Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014)24

Jordan v. Dominick’s

Jordan v. Dominick’s Finer Foods, LLC, 10-cv-407 (U.S. D.C. N.D. Ill)25