Plaintiffs are Jason Cross, also known as Mikel Knight, a country rap artist, and two entities affiliated with him. Defendant is Facebook, Inc. (Facebook). The dispute arises out of a Facebook page called "Families Against Mikel Knight," which page, plaintiffs claimed, incited violence and generated death threats against Knight and his team. Plaintiffs sought to have the page removed, Facebook refused, and plaintiffs sued, in a complaint that alleged six causes of action. Facebook filed a special motion to dismiss all six causes of action, arguing that they arose from protected activity and that plaintiffs could not show a probability of prevailing on any of them. The trial court held that the complaint was based on protected activity, that plaintiffs could not prevail on the first three causes of action, and granted the anti-SLAPP motion as to them. The trial court denied the motion as to the three other causes of action-claims alleging statutory and common law claims for violation of Knight's right of publicity, along with a derivative unfair competition law (UCL) claim-concluding that Knight had shown a probability of prevailing on them.
Both sides appeal, plaintiffs arguing that all six causes of action should proceed, Facebook that none should. We agree with Facebook, and thus affirm in part and reverse in part, with instructions to the
The Facts
Plaintiff Jason Cross, also known as Mikel Knight (Knight), is, as described in his complaint, "an American recording artist in the genre of Country Rap/Urban Country. Knight's music is available on streaming music services such as Spotify, and his music videos are available on music video services such as Vevo." 1203 Entertainment, LLC (1203 Entertainment) is Knight's record label, which itself has a marketing subsidiary, MDRST Marketing/Promotions (MDRST) (when referred to collectively, Knight, 1203 Entertainment, and MDRST will be referred to as plaintiffs).
Facebook operates a social networking service that enables some two billion users worldwide to connect and share information that is important to them with family, coworkers, and friends. Use of the service is free, but users agree to Facebook's terms of service when they sign up for a Facebook account and each time they access or use Facebook.
Knight's Facebook experience apparently proceeded uneventfully for several years, until 2014, when two accidents happened within a week.
MDRST's marketing efforts included hiring of independent contractors who would travel throughout the country in vans that featured Knight's name and logo, promoting his music and merchandise. On June 9 and 16, 2014, two vans were involved in separate accidents when the drivers fell asleep at the wheel. The accidents had tragic consequences, including two deaths and one serious injury.
Shortly after the accidents, a publicly available Facebook page called "Families Against Mikel Knight" was created, apparently by a person (or persons) related to the victims. As to plaintiffs' version of what followed, their brief describes it this way: "numerous commenters began posting statements inciting violence and death threats against Knight and members of his record labels .... Because of these comments, numerous members of Mr. Knight's promotion team were verbally threatened and physically assaulted. [¶] In addition to these threats and assaults, the unauthorized Facebook page also severely impacted Knight and 1203 Entertainment's business deals. In 2014 and 2015, Knight was in negotiations with numerous companies to sign lucrative deals involving his music. But once representatives from these companies, which included Nielsen SoundScan and the Dallas Cowboys football team, reviewed the content of the unauthorized Facebook pages, they backed out of these negotiations."
The Proceedings Below
On February 16, 2016, plaintiffs filed a verified complaint against Facebook. It alleged six causes of action, styled as follows: (1) breach of written contract; (2) negligent misrepresentation; (3) negligent interference with prospective economic relations; (4) breach of Civil Code section 3344 ; (5) violation of common law right of publicity; and (6) unlawful and unfair business practices, Business and Professions Code section 17200 (the UCL claim). Knight was a plaintiff in all six causes of action; 1203 Entertainment was also a
The essence of the complaint was that Facebook delayed in disabling the "Families Against Mikel Knight" page, and failed to detect and quickly remove two other claimed "unauthorized" pages critical of Knight. This, plaintiffs claimed, violated Facebook's terms and community standards and Knight's right of publicity.
On March 30, Facebook filed a demurrer, and a special motion to strike (anti-SLAPP motion). The anti-SLAPP motion contended that the complaint arose from the exercise of the constitutional right of free speech in connection with an issue of public interest, and that plaintiffs could not show a probability of success for two reasons: (1) the claims were barred by the Communications Decency Act; and (2) even if not, the claims were not viable under California law.
Plaintiffs filed an opposition that included a memorandum of points and authorities and three declarations-of Knight; Thomas Hairston, senior vice president of 1203 Entertainment; and attorney Mark Punzalan, purporting to authenticate some 60 pages of discovery and correspondence. Plaintiffs also filed a request for judicial notice.
Facebook filed a reply, and the motion came on for hearing on May 12. The trial court heard extensive argument, at the conclusion of which it took the matter under submission.
As to step two, the court held that the first three claims were barred by the CDA, going on to explain that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (
On June 16, Facebook filed a notice of appeal. On August 23, plaintiffs filed their own notice of appeal. We ordered the appeals consolidated.
SLAPP Law and the Standard of Review
Subdivision (b)(1) of Code of Civil Procedure section 425.16
We described the analysis under the anti-SLAPP law in Hecimovich v. Encinal School Parent Teacher Organization (2012)
"A two-step process is used for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff has demonstrated a probability of prevailing on the claim. ( Navellier v. Sletten (2002)
" 'The Legislature enacted section 425.16 to prevent and deter "lawsuits [referred to as SLAPP's] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." ( § 425.16, subd. (a).) Because these meritless lawsuits seek to deplete "the defendant's energy" and drain "his or her resources" [citation], the Legislature sought " 'to prevent SLAPPs by ending them early and without great cost to the SLAPP target' " [citation]. Section 425.16 therefore establishes a procedure
"Finally, and as subdivision (a) of section 425.16 expressly mandates, the section 'shall be construed broadly.'
Plaintiffs' Lawsuit Involves an Issue of Public Interest
Facebook's anti-SLAPP motion was based on section 425.16, subdivision (e)(3). That subdivision provides that an act in furtherance of the right of free speech as described in section 425.16, subdivision (b)(1) includes "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest."
As the trial court aptly observed, "It cannot be disputed that Facebook's website and the Facebook pages at issue are 'public forums,' as they are accessible to anyone who consents to Facebook's Terms." This, of course, is consistent with the law establishing that "[w]eb sites accessible to the public ... are 'public forums' for purposes of the anti-SLAPP statute." ( Barrett v. Rosenthal (2006)
So, the issue is whether plaintiffs' lawsuit is based on an "issue of public interest." We conclude it is.
We begin our analysis with more quotation from Hecimovich : "Like the SLAPP statute itself, the question whether something is an issue of public interest must be ' " 'construed broadly.' " ' ( Gilbert v. Sykes (2007)
"We look for 'the principal thrust or gravamen of the plaintiff's cause of action.' ( Martinez v. Metabolife Internat., Inc. (2003)
As the trial court explained, the pages to which Knight objected discussed incidents involving contractors hired by plaintiffs, contractors who "fell asleep behind the wheel in two separate incidents, resulting in fatal collisions." And as the trial court concluded, "It is not a far stretch to say that such incidents, and the circumstances
Arguing in support of their appeal, plaintiffs make two arguments. The first is that their claim is based not on public statements, but rather, in plaintiffs' words, is "premised specifically on Facebook's statements made privately to Mr. Knight in August 2010 that Facebook would remove content where there was a threat to physical harm." Or, as plaintiffs put it at a later point, "the trial court erred by not focusing on 'the specific nature of the speech rather than the generalities that might be abstracted from it.' Here, the specific speech at issue was Facebook's own promises to [plaintiffs], not the speech of any third party." Plaintiffs' second argument is that the anti-SLAPP motion fails based on the "commercial speech" exception in section 425.17.
The trial court rejected both arguments. So do we.
Plaintiffs' first argument is, as the trial court concluded, inconsistent with the actual allegations in their complaint, the clear gravamen of which is Knight's objection to the third-party content on the pages and Facebook's editorial decisions to not remove them. Thus, for example, the complaint contains these allegations:
"Facebook Refuses to Disable the Unauthorized Mikel Knight Page in Violation of Its Terms of Service";
"By refusing to disable the unauthorized Facebook pages, Facebook has engaged in conduct that has and will continue to cause significant physical harm to Knight and MDRST independent contractors .... But by refusing to disable the pages, Facebook acted with a willful and conscious disregard for the safety of Knight and MDRST independent contractors";
"By refusing to disable the unauthorized Facebook pages, Facebook has violated the Terms of Service."
Plaintiffs' brief states that "As a requirement to signing up for Facebook, Mr. Knight had to accept Facebook's Terms of Service. Among other things, the Terms of Service-along with certain 'supplemental terms' specifically incorporated by reference-prohibited harassing and violent speech against Facebook users. These supplemental terms also made an explicit promise to Knight: 'We remove credible threats of physical harm to individuals.' Facebook also stated that '[w]e want people to feel safe when using Facebook,' and agreed to 'remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of
As will be seen, there was much language in Facebook's terms and conditions providing for Facebook's discretion vis-à -vis content on its pages. But even if statements in Facebook's terms could be construed as obligating
Barnes v. Yahoo!, Inc. (9th Cir. 2009)
Plaintiff sued. The district court granted Yahoo!'s motion to dismiss. The Ninth Circuit affirmed in part and reversed in part, holding that plaintiff's negligent undertaking claim was barred by the CDA, but her promissory estoppel claim was not. ( Barnes,
Knight has no promissory estoppel claim-and Barnes no applicability here. Neither does section 425.17.
Attempting to invoke this exemption, Knight focuses not on the actual statements or conduct that are the basis of his right of publicity claims, but on portions of unrelated statements made in Facebook's terms and community standards. These, Knight argues, somehow form the basis of his right of publicity claim, and qualify as "representations of fact" made by Facebook for the purpose of selling more of its goods or services. The argument fails, for several reasons.
First, while Facebook sells advertising, it is not "primarily engaged in the business of selling or leasing goods or services." Knight has not alleged that it is. Nor could he, as Facebook offers a free service to its users.
Second, the relevant "statements" at issue in plaintiffs' complaint are not Facebook's terms and community standards. To the contrary-and as plaintiffs' complaint makes clear-Knight is not challenging any commercial statement by Facebook about its business operations. Rather, Knight's right of publicity claims and the derivative UCL claim arise from the speech of the third parties who created the pages and posted negative comments about Knight on them. Knight makes no attempt to show that these third-party statements constitute "commercial speech" by Facebook.
Third, even if Facebook's terms and community standards were the relevant statements or conduct at issue here, Knight has not identified any "representation of fact" that Facebook would remove any objectionable content. Indeed, the actual terms are to the contrary, providing in essence that Facebook has the discretion to remove content that violates Facebook policies. By way of illustration, the terms include that: "We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies." The terms also make clear that Facebook is not responsible for "the content or information users transmit or share on Facebook," for "any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook," or for
Facebook's community standards are no more helpful to plaintiffs. The standards provide further guidance to users about what kind of content they can share on Facebook, and the types of discretionary
"[P]lease keep in mind that something that may be disagreeable or disturbing to you may not violate our Community Standards."
"Reporting something doesn't guarantee that it will be removed because it may not violate [Facebook's] policies."
"Our review decisions may occasionally change after receiving additional context about specific posts or after seeing new, violating content appearing on a Page or Facebook Profile."
"Not all disagreeable or disturbing content violates [Facebook's] Community Standards."
None of these statements are a "representation of fact" about Facebook's services made for the purpose of soliciting users. They are not within section 425.17. (See Simpson Strong-Tie Co., Inc. v. Gore (2010)
Knight's reliance on Demetriades v. Yelp, Inc. (2014)
Having concluded that the basis of the complaint is an issue of public interest under step one of the anti-SLAPP analysis, we turn to step two.
Plaintiffs Have Failed to Demonstrate a Likelihood of Prevailing on the Merits
The Law
As to step two, we confirmed the applicable law in Grewal, supra,
"We decide the second step of the anti-SLAPP analysis on consideration of 'the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' ( § 425.16, subd. (b).) Looking at those affidavits, '[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.' (
As we stated in Hecimovich, supra,
The First, Second, and Third Causes of Action
As noted, the trial court granted the anti-SLAPP motion as to plaintiffs' first three causes of action, for breach of contract, negligent misrepresentation, and negligent interference, holding that the CDA barred these three claims. We reach the same conclusion.
The CDA provides in pertinent part that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (
As Congress itself put it, the reason for excluding interactive computer services from liability for republication was "to promote the continued development of the Internet and other interactive computer services ... [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." (
This, of course, is the same argument Knight made in connection with step one, an argument we rejected. It has no more merit in step two. In evaluating whether a claim treats a provider as a publisher or speaker of user-generated content, "what matters is not the name of the cause of action"; instead, "what matters is whether the cause of action inherently requires the court to treat the defendant as the 'publisher or speaker' of content provided by another." ( Barnes,
Based on that principle, numerous courts have held the CDA bars claims based on a failure to remove content posted by others. ( Hupp v. Freedom Communications, Inc., supra,
The Fourth, Fifth, and Sixth Causes of Action
As noted, the trial court denied the motion as to the remaining three causes of action, Knight's claims for (4) violation of Civil Code section 3344, (5)
The fourth cause of action, for statutory right of publicity, is based on Civil Code section 3344, which provides in relevant part as follows: "Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner ... for purposes of advertising or selling ... without such person's prior consent, ... shall be liable for any damages sustained by the person or persons injured as a result." ( Civ. Code, § 3344, subd. (a).)
The fifth cause of action is for common law right of publicity. That claim has four elements: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. ( Maxwell v. Dolezal (2014)
The sixth cause of action, the UCL claim, is, as plaintiffs' counsel acknowledged, a derivative claim based on the other two.
Civil Code section 3344 was intended to complement, not supplant, common law claims for right of publicity. ( Kirby v. Sega of America, Inc. (2006)
In light of the interrelatedness of the three clams, we analyze them together-and conclude plaintiffs cannot prevail.
Both Civil Code section 3344 and the common law require that Facebook "use" the plaintiff's identity. ( Montana v. San Jose Mercury News, Inc. (1995)
To begin with, the allegations are unavailing. The law is that plaintiffs cannot
In any event, the conclusory assertions are belied by the actual complaint. Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight's name and likeness to critique his business practices-and their allegedly fatal consequences. While Knight claims that "Facebook continues to place ads on all the unauthorized Facebook pages," he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties.
Perfect 10, Inc. v. Google, Inc. (C.D.Cal., July 30, 2010, No. CV 04-9484 AHM,
The gravamen of Knight's complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight's name and likeness-content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way. ( Montana v. San Jose Mercury News, Inc., supra,
In sum, the evidence demonstrates that Facebook has not used Knight's identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation.
As noted, one of the requisite elements of a common law right to publicity claim is that defendant appropriated plaintiff's name "to defendant's advantage, commercially or otherwise." Similarly, Civil Code section 3344, subdivision (a) requires that the name be used "for purposes of advertising or selling." Plaintiffs' showing falls short.
Plaintiffs assert that Civil Code section 3344's "commercial use" requirement does not need to "involve some form of advertising or endorsement." This is simply incorrect, as Civil Code section 3344, subdivision (a) explicitly provides for possible liability on "[a]ny person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner ... for purposes of advertising ... without such person's prior consent." The statute requires some "use" by the advertiser aimed at obtaining a commercial advantage for the advertiser. (See, e.g.,
Knight has not even alleged-let alone shown-that any advertiser used his name or likeness. He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity. Indeed, the evidence Knight submitted below demonstrated either that no advertisements appeared alongside the pages at issue, or that the advertisements that did appear adjacent to the content posted by third parties made no use of his name or likeness. At most, Knight has shown that Facebook allowed unrelated third-party advertisements to run adjacent to pages containing users' comments about Knight and his business practices. This is insufficient.
Newcombe v. Adol f Coors Co. (9th Cir. 1998)
Newcombe filed suit in California state court against several defendants, including Coors and Time, the publisher of Sports Illustrated , alleging that his identity had been misappropriated in violation of California statutory and common law, and that the advertisement was defamatory. Defendants removed the case to federal court, which thereafter granted defendants' motion for summary judgment. The Ninth
Here, any "benefit" to Facebook from the use of Knight's name and likeness is even more attenuated. The advertisement in Newcombe actually
Stewart v. Rolling Stone LLC, supra,
Here, as in Newcombe and Stewart , there was no commercial benefit to Facebook from the use of Knight's likeness. Simply, the appearance of advertisements next to a third party's use of Knight's identity is insufficient to demonstrate a commercial use by Facebook. It has not benefited Facebook in any actionable way.
As indicated, to defeat an anti-SLAPP motion, Knight " ' "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment." ' " ( Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra,
In light of the above, we need not address Facebook's argument that the fourth, fifth, and sixth causes of action fail based on the public interest defense based on the First Amendment. (See Civ. Code, § 3344, subd. (d) ["use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required"];
DISPOSITION
The May 31, 2016 order is affirmed in part and reversed in part, and the matter is remanded to the trial court with instructions to (1) enter an order granting the anti-SLAPP motion in its entirety and striking the complaint, and (2) hold a hearing, following further briefing, to award Facebook the attorney fees to which it is entitled under section 425.16. Facebook shall recover its costs on appeal.
We concur:
Stewart, J.
Miller, J.
Notes
The complaint says the cause of action is "by Both Plaintiffs," but as noted there are three.
This was at least the second attempt by plaintiffs to sue Facebook. In July 2015, Knight and 1203 Entertainment sued Facebook in Tennessee state court and obtained an ex parte temporary restraining order against Facebook. Facebook's motion to dissolve the order was granted, the Tennessee court holding that Facebook was not the creator of the content and that the Communications Decency Act (
All statutory references are to the Code of Civil Procedure except where otherwise noted.
Plaintiffs did not provide the actual terms in existence when Knight joined Facebook, but specimen pages apparently in existence when their opposition was filed. As to the language distilled in plaintiffs' recitation, the actual language is as follows:
"Helping to Keep you Safe
"Direct Threats: How we help people who feel threatened by others on Facebook.
"We carefully review reports of threatening language to identify serious threats of harm to public and personal safety. We remove credible threats of physical harm to individuals. We also remove specific threats of theft, vandalism, or other financial harm.
"We may consider things like a person's physical location or public visibility in determining whether a threat is credible. We may assume credibility of any threats to people living in violent and unstable regions."
In the right-hand margin of this section were the following:
"Overview
"Direct Threats
"Self-Injury
"Dangerous Organizations
"Bullying and Harassment
"Attacks on Public Figures
"Criminal Activity
"Sexual Violence and Exploitation."
This is confirmed by Knight's submission of excerpts of the unauthorized pages "Jason cross aka mikel knight" and "Prove yourself Jason Cross aka Mikel Knight," pages that show only unrelated, sponsored content adjacent to the pages.
As to the sixth cause of action, the UCL claim, plaintiffs assert that Facebook waived its argument as to this claim for failure to address it specifically. We disagree, especially as the trial court concluded-and Knight admits-that the UCL claim was derivative of Knight's right of publicity claims which "serve as the predicate unlawful business practices under the UCL." In any event, Facebook mentioned the issue in its opening brief.