Cross v. Facebook
A148623
| Cal. Ct. App. | Aug 9, 2017Background
- Plaintiff Jason Cross (stage name Mikel Knight), his record label 1203 Entertainment, and its marketing arm MDRST sued Facebook after a third‑party Facebook page "Families Against Mikel Knight" and comments allegedly incited threats and harmed plaintiffs' business deals. Plaintiffs asked Facebook to remove the page; Facebook declined.
- Plaintiffs filed a verified complaint alleging six causes of action: (1) breach of written contract; (2) negligent misrepresentation; (3) negligent interference with prospective economic relations; (4) statutory violation of Civil Code § 3344 (right of publicity); (5) common‑law right of publicity; and (6) derivative UCL claim.
- Facebook moved to strike under California’s anti‑SLAPP statute and argued the Communications Decency Act (47 U.S.C. § 230) barred liability for third‑party content; the trial court granted the motion as to claims 1–3 but denied it as to claims 4–6, treating right of publicity as an intellectual‑property exception to § 230.
- The Court of Appeal held the Facebook pages and their content involve matters of public interest and thus fit the anti‑SLAPP first prong, but reviewed step two de novo to determine plaintiffs’ probability of prevailing.
- The court affirmed that § 230 bars claims treating Facebook as the publisher/speaker of third‑party content (claims 1–3) and reversed the denial as to the publicity and UCL claims, concluding plaintiffs failed to show Facebook itself used Knight’s name or likeness or that advertisers used them.
- The Court of Appeal instructed the trial court to grant the anti‑SLAPP motion in full, strike the complaint, and hold a fee hearing for Facebook.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs' claims arise from protected speech on an issue of public interest | Knight: claims arise from Facebook's private promises and TOS, not public third‑party speech | Facebook: claims target third‑party content and Facebook's editorial decisions in a public forum | Held: Pages/content concern public interest; anti‑SLAPP first prong satisfied |
| Whether California anti‑SLAPP commercial‑speech exception (§ 425.17) applies | Knight: Facebook's terms and promises are commercial statements and exempt from SLAPP | Facebook: terms are discretionary/puffery; plaintiffs challenge third‑party content, not commercial statements | Held: § 425.17 does not apply; plaintiffs' claims target editorial decisions, not commercial statements |
| Whether CDA § 230 immunizes Facebook from claims based on failure to remove third‑party content (claims 1–3) | Knight: claims arise from Facebook's own promises/representations, not third‑party content | Facebook: § 230 bars treating an interactive computer service as publisher/speaker of others' content | Held: § 230 bars claims 1–3; plaintiffs cannot treat Facebook as publisher/speaker of third‑party content |
| Whether right of publicity (statutory and common law) and derivative UCL claims survive § 230 because right of publicity is IP under § 230(e)(2) | Knight: right of publicity is protected from § 230 by the intellectual‑property exception; Facebook profited by running ads adjacent to the pages using his name/likeness | Facebook: plaintiffs produced no evidence Facebook itself used Knight's name/likeness or that ads used them; adjacency alone is insufficient | Held: Plaintiffs failed to show Facebook used or appropriated Knight's identity or that advertisers used it; claims 4–6 lack minimal merit and must be stricken |
Key Cases Cited
- Hecimovich v. Encinal School Parent Teacher Org., 203 Cal.App.4th 450 (Cal. Ct. App. 2012) (explains two‑step anti‑SLAPP analysis and broad construction of statute)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (anti‑SLAPP burden and review standards)
- Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006) (websites as public forums for anti‑SLAPP purposes)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (distinguishes promissory estoppel claims from claims treating a provider as publisher under § 230)
- Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011) (no right‑of‑publicity liability where plaintiff failed to show service provider itself used plaintiff's likeness)
- Newcombe v. Adolph Coors Co., 157 F.3d 686 (9th Cir. 1998) (publisher not liable where advertising revenue was unrelated to content that used plaintiff's likeness)