February 16, 2009
Yahoo/Overture Sued for Search Results Snippets Containing Plaintiff's Name--Stayart v. Yahoo
By Eric Goldman
Bev Stayart appears to be proud of her accomplishments. As the complaint recounts her credentials, we are informed that she has an MBA in finance, was a VP at an unnamed financial institution, is passionate about animals, participates in an online discussion forum where her "scholarly" posts have generated 17,000 hits in three years, and has written two poems about protecting seals that were published on Danish websites. I'm not quite sure exactly what we are supposed to glean from these facts, but if they are designed to establish that she has had a life-well-lived, then we might extend her some kudos for that. These facts--IMO, much less compellingly--also apparently support her allegation (para. 21) that her name has commercial value because of "her humanitarian endeavors, positive and wholesome image, and the popularity of her scholarly posts on the Internet." If 17,000 hits in three years creates commercial value in the author's name, then the Internet is filled with rock stars!
Perhaps more remarkable is that Bev Stayart claims she is the only "Bev Stayart" and "Beverly Stayart" on the Internet (para. 19), and it appears that she would like to keep it that way. Thus, she is seemingly taking the position that any reference to "Bev Stayart" and "Beverly Stayart" on the Internet must be referring to her and only her. That would be a neat trick if true because it could give her exclusionary power over every Internet reference containing those names, but I would be shocked if there is and has been only one Bev/Beverly Stayart in the entire world.
It's a little unclear from the complaint exactly what's going on to make Bev Stayart unhappy, but it looks like she ran into some cloaked search engine spam pages that referenced her name. For example, she searched for "Beverly Stayart" in Yahoo and got the following search result out of a total of 7 unique search results (surprisingly small number for a person with commercial value in their name):
Pm 10 kb Loading Cialas -- Online Pharmacy
Pm 10kb loading cialas january th, at: pm hi friends i met you
in the tim horton s on bloor st a few Sundays ago I ... on february
bev stayart on march th ...
Incredibly, she then clicked on this search result (whoa!) and was taken to a page on mysharedvideo.com which had her name centered in a darkened movie screen and ultimately played an adult video. Her Norton software went crazy on the page (surprise!), suggesting malware was on the page.
She subsequently tried the same search (in both Yahoo and AltaVista) multiple times and got the same search results each time, which took her to other similar websites that all promoted adult entertainment. She also tried some searches with her name plus an erectile dysfunction drug's brand name and got similar results. Finally, she clicked on the .cn domain name in the search result (bold!) multiple times and was apparently taken to some type of splog pages. The fact that she repeated this search and clicked on the search results many times suggests a rare combination of self-interest and amazing--and undoubtedly unwarranted--confidence in her Norton software.
(Various is a defendant because it showed up as a result in the "related searches" feature of AltaVista and apparently provided spam pages that contain her name in the page title and post-domain URL).
Based on the foregoing, she alleges that Yahoo and Overture's display of the false snippets constituted Lanham Act false endorsement and false designation of origin and violation of Wisconsin's publicity rights statute and common law privacy rights.
There are two obvious problems with the lawsuit against Yahoo and Overture. First, if there is or has been even one other Bev or Beverly Stayart in the world, the plaintiff has a real problem proving that the online references were to her and not the other person. And, with all due respect to Ms. Stayart's lifetime of accomplishments, it would be ridiculous for her to argue that her name is so well-recognized that readers would assume that the references were to her instead of other folks with a common name.
The other major problem is 47 USC 230. Per 230, Yahoo and Overture are not liable for creating snippets of third party content, even if they create a false impression. See, e.g., Maughan v. Google and Murawski v. Pataki. Nevertheless, 230 is not a perfect defense because these claims are close to being "intellectual property claims" that would drop out of 230 coverage in some places. Lanham Act trademark claims are unquestionably IP claims, although I personally think Lanham Act false advertising claims are not. See, e.g., the Kruska case. Even so, irrespective of 230, I think the recent Heartbrand Beef v. Lobel's case suggests that search engines may not be liable for false designation of origin simply by presenting third party content.
Similarly, the WI publicity rights statute might be preempted by 230 even though there is more unanimity that publicity rights are IP; compare ccBill (preempted) and Friendfinder (not preempted). The common law right of privacy claim is almost certainly preempted by 230 in all jurisdictions.
One last tidbit that may help contextualize this case. Bev Stayart appears to be "CFO and Director of Business Development" for Stayart Law Offices, and her co-worker (and family relation?) Gregory A. Stayart is the lawyer in the case. (I had difficulty finding enough info about Gregory or the Stayart Law Offices to clarify the connection; that may have something to do with the fact that Gregory isn't licensed to practice law in Wisconsin). Sorry for the snarkiness, but I guess this is one way for Ms. Stayart to develop a law firm's business, especially in a down market like this.
[A favor: please take a look at the search results for "Stayart Law Offices" and let me know what might explain the widespread redundant distribution of Bev Stayart's resume information at mulitple no-name services. Is this what a typical reputation management campaign produces?]
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