Imagine if every depiction of a real person on social media could support a lawsuit. That’s the strange and dangerous logic of a recent lower court decision from California. In that case, Cross v. Facebook, a superior court judge ruled that any “use” of a person’s identity on a site that also included advertising could support a right of publicity claim. If allowed to stand, this ruling could destroy long-settled immunity for hosts of user-generated content. Today EFF filed an amicus brief urging the California Court of Appeal to overturn the lower court’s decision. Our brief explains that the ruling is inconsistent with right of publicity law, CDA 230, and the First Amendment.

The case was brought by a country-rap artist named Jason Cross who performs under the stage name Mikel Knight. He promotes his music using “street teams” who sell his CDs out of vans. After a fatal accident involving one of these vans, Knight’s sales practices began getting unfavorable media attention. He has been accused of pushing his sales teams too hard and created an unsafe environment. A Facebook page called ‘Families Against Mikel Knight’ was created where ex-street team members and others could comment on Knight’s operation.

Knight filed a lawsuit against Facebook asserting a collection of claims ranging from negligent interference with prospective business relations to right of publicity. Facebook filed an anti-SLAPP motion seeking to dismiss the complaint. Since Knight was effectively trying to hold Facebook liable for content posted by users, the court correctly dismissed most of Knight’s claims as barred under CDA 230 (which protects online intermediaries that host or republish speech against a range of claims that might otherwise be used to hold them legally responsible for what others say and do).

The court did allow Knight’s right of publicity claim to proceed. The right of publicity is a fairly recent offshoot of state privacy law that gives a person the right to limit the public use of her name, likeness, or identity for commercial purposes. While a limited version of this right makes sense (for example, allowing people to prevent companies from using their name in an ad without permission), some courts have allowed it to expand dramatically to cover just about any speech that that “evokes” a person’s identity. Celebrities have brought right of publicity cases against movies, rap lyrics, magazine features, and computer games.

The judge reasoned that Knight had a viable right of publicity claim because Facebook had made commercial “use” of his likeness along side advertisements and has a commercial interest in growing its user base. But this seems inconsistent with long standing rulings holding, for example, that a magazine article does not give rise to a right of publicity claim just because it is placed next to an advertisement. There is no reason to have a different, less protective, rule for the Internet.

It is difficult to overstate just how disruptive this ruling would be if it were allowed to stand. One of the central purposes of CDA 230 was to shield intermediaries from defamation claims. The trial court’s logic would allow frustrated defamation plaintiffs to evade CDA 230 by filing right of publicity claims instead. These claims would likely be even easier to establish because they only require “use” of the plaintiff’s identity and don’t require proving falsity.

Our brief explains that the court should have dismissed all of Knight’s claims, including the right of publicity count, under CDA 230. Although CDA 230 does not shield intermediaries from “intellectual property” claims, the Ninth Circuit has correctly limited that provision to federal intellectual property laws. In any event, the right of publicity is more appropriately considered a privacy tort. It does not protect creative works or the products of intellectual effort. Instead, it regulates the commercial use of identity. It is more like a false-advertising claim than a copyright claim.

We also point out that Knight’s claim is barred by the First Amendment. If it were truly as broad as the lower court suggests, the right of publicity would massively burden expression. It would effectively give celebrities (or even regular people since the right of publicity is not limited to the famous) veto power over Facebook posts, tweets, or Yelp reviews that feature them. The right of publicity cannot trump free speech.

We are joined on the amicus brief by Engine, Professor Eric Goldman, Github, Medium, the Organization for Transformative Works, Professor Rebecca Tushnet, Snap, the Wikimedia Foundation, and Yelp.