Cross v. Facebook, Inc.
14 Cal. App. 5th 190
Cal. Ct. App. 5th2017Background
- Plaintiff Jason Cross (stage name Mikel Knight), his label 1203 Entertainment, and marketing subsidiary MDRST sued Facebook over a user-created page "Families Against Mikel Knight" that criticized Knight after two fatal van accidents involving his contractors.
- Plaintiffs alleged Facebook refused to remove the page and related content despite reports and its terms, causing threats, assaults on contractors, and lost business opportunities; they pleaded six causes of action including breach of contract, negligent misrepresentation, negligent interference, statutory and common-law right of publicity (Cal. Civ. Code § 3344), and a derivative UCL claim.
- Facebook moved under California’s anti‑SLAPP statute (Code Civ. Proc. § 425.16), arguing the claims arise from protected public‑interest speech and that plaintiffs cannot show a probability of prevailing; Facebook also asserted Communications Decency Act (47 U.S.C. § 230) immunity.
- The trial court found the claims arise from protected activity, granted the anti‑SLAPP motion as to the first three causes of action (CDA barred), but denied it as to the right‑of‑publicity and derivative UCL claims, reasoning § 230(e)(2) preserves intellectual property/right‑of‑publicity claims and plaintiffs showed a probability of success because Facebook displayed ads adjacent to the pages.
- Both sides appealed; the Court of Appeal reversed the trial court's denial, holding all six claims are subject to the anti‑SLAPP motion and must be stricken, and remanded for an attorneys’ fee hearing in favor of Facebook.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the lawsuit arises from protected speech on a matter of public interest | Knight: claim stems from Facebook’s private promises/terms, not public speech | Facebook: claims target third‑party user content and Facebook’s editorial decisions in a public forum | Court: lawsuit arises from protected public‑forum speech (anti‑SLAPP step 1) |
| Whether CDA § 230 bars tort/contract claims based on failure to remove third‑party content (first three causes) | Knight: claims based on Facebook’s own promises, not third‑party content, so CDA doesn’t apply | Facebook: § 230 immunizes providers from being treated as publisher/speaker of user content | Court: § 230 bars the first three claims because they would treat Facebook as publisher of third‑party content |
| Whether § 230(e)(2) / IP exception permits right‑of‑publicity and § 3344 claims against Facebook (fourth and fifth causes) | Knight: right of publicity is a form of intellectual property preserved by § 230(e)(2); ads adjacent to pages give Facebook commercial use | Facebook: § 230(e)(2) does not create liability absent actual use by the defendant; mere hosting/adjacent ads insufficient | Court: § 230(e)(2) does not save claims here—plaintiffs failed to show Facebook “used” Knight’s identity or appropriated it for commercial advantage |
| Whether plaintiffs made a prima facie showing of “use”/commercial appropriation for § 3344 / common‑law right of publicity and derivative UCL | Knight: advertisers and Facebook profited from pages using his name; Facebook continued to run ads and refused to disable pages | Facebook: plaintiffs produced no evidence that Facebook used Knight’s name/likeness in ads or obtained a commercial benefit tied to his identity | Court: Evidence failed to show Facebook’s use or commercial appropriation; claims lack minimal legal sufficiency and must be stricken |
Key Cases Cited
- Hecimovich v. Encinal School Parent Teacher Organization, 203 Cal.App.4th 450 (Cal. Ct. App. 2012) (explaining two‑step anti‑SLAPP analysis and public‑interest inquiry)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (standard for showing probability of prevailing under anti‑SLAPP)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (distinguishing promissory‑estoppel claims from claims that treat 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 defendant did not itself use plaintiff’s likeness despite hosting user content and ads)
- Newcombe v. Adolph Coors Co., 157 F.3d 686 (9th Cir. 1998) (publisher not liable for third‑party ad content where magazine’s benefit from ad sale was unrelated to ad’s use of plaintiff’s likeness)
- Stewart v. Rolling Stone LLC, 181 Cal.App.4th 664 (Cal. Ct. App. 2010) (proximity of editorial content to advertisements does not convert noncommercial speech into actionable commercial use)