Section 230 Doesn’t Protect Yearbook Website’s Ads–Knapke v. Classmates

Classmates offers paywalled access to yearbook info. Classmates allows free searches, and the “search results provide a free preview of the services and products with a photo and name of an individual to entice the user to purchase Classmates’ services and products.” One of the individuals, Knapke, initiated a class action against Classmates for the ads. Classmates moves to dismiss. It does not go well.

Section 230. The court says:

The offending content is generated by Classmates and the advertisement is not merely some passive display of content created by another entity, even if it contains a picture from a school yearbook. In this context, Classmates is the content creator and not entitled to immunity under the CDA

This is quite similar to the uncited Fraley v. Facebook ruling from a decade ago. You may recall that Facebook featured its users in ads to other users. Facebook’s ads remixed third-party content, but Facebook generated the ad copy itself. The court similarly held that Section 230 didn’t apply to Facebook’s ad creation.

The court distinguishes Callahan v. Ancestry, which found 230 applied with respect to another yearbook database that promoted its contents by featuring people, because

the court focused on defendant’s online display of yearbooks created by third parties. Here, the focus is on Classmates’ use of a yearbook photo in stand-alone advertisements it uses to lure in potential customers. That form of customized advertisement is not protected under the CDA.

Ohio Publicity Rights. Knapke “has alleged that Classmates has used her persona—name and photograph—for a commercial purpose—selling Classmates’ products and services.” Classmates tried several arguments to dislodge this:

• Classmates said that no one other than Knapke saw the ad, so it’s like the tree that fell in a forest with no one around to hear it. The court says publicity rights differ from false light, which does require communication to third parties, so no biggie.
• Classmates said that Knapke’s image didn’t have commercial value. The court embraces a tautology: “Her persona is used to make the advertisement, which shows its commercial value.” In other words, any image in an ad is ipso facto commercially valuable. That circular “logic” reads the factor out of the law.
• Classmates argued that no one in Ohio saw her image, so the Ohio publicity law can’t apply. The court responds that Knapke is domiciled in Ohio, and that’s good enough.
• Classmates argued that its walled garden qualified as a “literary work” which can be promoted without running afoul of publicity rights. The court agrees that Classmates publishes a literary work, but says the ad content promoted more than the walled garden.
• Classmates said Knapke’s publicity rights claim violates the First Amendment. The court says the case involves an ad, which gets intermediate scrutiny. The “Right of Publicity Law directly and appropriately advances Ohio’s substantial interest in enabling its citizens to protect the nonconsensual commercial exploitation of their likeness without overbroadly prohibiting commercial speech.”

Dormant Commerce Clause. The court does a Pike balancing test:

Classmates fails to offer any convincing rationale why the burden imposed on its interstate business is clearly excessive in light of Ohio’s desire to prevent non-consensual commercial use of Ohioans’ personas. The burden on Classmates itself is incidental to the Right of Publicity Law’s attempt to protect Ohioan’s property interest in their own persona. This protective measure serves the core, individual rights of Ohioans and Classmates provides no evidence the law was designed as an economic barrier to favor Ohio economic interests. Nor has Classmates shown that there is some less burdensome approach that could satisfy Ohio’s interests as to publicity rights. And it is worth noting that Classmates has availed itself of the benefits of doing business in Ohio by acquiring Ohio yearbooks expressly for the purpose of marketing access to them and related services to—by and large—Ohioans. And given the nature of the offending advertisement at issue—which Classmates created—it would appear that Classmates has the ability to simply alter the way in which it advertises its services to avoid the nonconsensual use of Ohioans’ personas.

This has turned into a dangerous lawsuit for Classmates. If they aren’t prepared to appeal the ruling (whenever it’s timely to do so) with the hope that appellate judges see things differently, they may find it prudent to cut their losses and settle.

Case citation: Knapke v. PeopleConnect Inc., 2021 WL 3510350 (W.D. Wash. Aug. 10, 2021)