The Court of Appeals for the State of California upheld a trial court decision granting defendant’s motion to strike under California’s anti-SLAPP statute but remanded the position denying defendant’s motion to strike the remaining three claims for violation of statutory and common law right of publicity (ROP) and unlawful/unfair business practices (UCL claim). Cross v. Facebook, Inc., Case Nos. A 148623; 149140 (Cal. App. Ct., Aug. 9, 2017) (Richman, J).

Jason Cross, a country rap star who goes by the name Mikel Knight, and two affiliated entities (collectively, Knight) brought a suit against Facebook for breach of contract, negligent misrepresentation/interference with prospective economic relations, and violation of their ROP under California state law and common law. They also brought unfair competition claims based on Facebook’s use of Knight’s name on its website, as well as content from the Facebook page “Families Against Mikel Knight.” The district court granted Facebook’s anti-SLAPP motion to strike the first three claims, but allowed Knight’s ROP claims. Both sides appealed.

The Court of Appeals agreed with the trial court that Facebook was not obligated to remove the page criticizing Knight, even though the comments allegedly led to verbal and physical assaults on Knight’s team by third parties. The Court reasoned that Facebook is a public forum, which satisfies the first prong of the anti-SLAPP test. As to the second prong of the test, Facebook is an “interactive computer service” rather than the content provider (here, a third party who created the offending “Families Against Mikel Knight” page). The Court concluded that since Facebook was not the “publisher” of the objectionable content, it was not liable for the first three causes of action—especially as it had no affirmative duty to remove such content. Facebook’s Terms of Service leave such removal to Facebook’s discretion.

The trial court found that Knight had shown a probability of prevailing on the statutory and ROP claims and the UCL claim because Facebook displayed ads alongside the unofficial pages at issue. The Court of Appeals disagreed, however. Facebook’s advertisements did not use Knight’s name or image—they merely appeared adjacent to the unauthorized pages. The third parties lambasting Knight were the persons using Knight’s name and image. Finding no nexus between the ads and the content, the Court concluded that the statutory requirement of use of Knight’s ROP in advertising by Facebook was not met. Although Facebook does collect advertising revenue from its ads, the use of Knight’s likeness was too attenuated and did not lead to commercial advantage for Facebook.

Accordingly, the Court of Appeals concluded that the district court did not err in its dismissal of Knight’s anti-SLAPP claims, but did err in its failure to dismiss the ROP claims. It remanded the case to the trial court with instructions to hold a hearing regarding attorneys’ fees and costs of appeal.

Practice Note: A plaintiff must show in its ROP claim that the defendant, not a third party, used plaintiff’s likeness and that such use was for the purpose of advertising.