• by Wendy Davis  @wendyndavis, August 11, 2017

Siding with Facebook, a federal appellate court in California has ruled that the social networking service need not remove a page critical of country rap artist Mikel Knight.

The decision, issued this week, centers on a Facebook page originally called "Families Against Mikel Knight," which contained posts related to car accidents suffered by people who marketed Knight's music. The page grew out of Knight's marketing practices, which included hiring independent contractors who drove around the country and sold CDs out of branded vans. In June of 2014, drivers of two of the vans were involved in accidents after falling asleep at the wheel -- resulting in two fatalities and one serious injury, according to the court opinion.

Last year, Knight sued Facebook over the page. The performer made a host of claims, including that the page interfered with his economic relations by spurring Nielsen SoundScan and the Dallas Cowboys to back out of negotiations; he also alleged that the page infringed his "right of publicity" -- meaning his right to control the commercial use of his name and image.

Facebook argued that the matter should be thrown out at an early stage for a host of reasons, including that California has an anti-SLAPP (strategic litigation against public participation) that protects companies when they are sued over statements about matters of public interest.

That law makes it easier for online platforms to prevail quickly when they have a clear defense to the allegations. Facebook contended that it had such a defense in the Communications Decency Act -- a federal law that broadly immunizes web platforms for posts by users, but has an exception for posts that infringe intellectual property.

A trial judge dismissed some of Knight's claims, including allegations that the page interfered with prospective business deals. But the judge refused to dismiss allegations related to Knight's "right of publicity" -- which some judges have said are a form of intellectual property.

The trial judge ruled that those claims warranted further proceedings, given that the company allegedly placed ads on pages with Knight's name and photo. "Facebook's alleged use of Knight's image on the unauthorized pages generates advertising revenue for the company," the trial judge wrote.

Facebook and Knight both appealed. Among other arguments, Facebook said that Knight's allegations didn't amount to a violation of his right of publicity.

The digital rights group Electronic Frontier Foundation, along with Yelp, Wikipedia and others, backed Facebook in its appeal. They argued that the trial judge wrongly expanded the concept of the "right of publicity."

"The right of publicity requires the 'commercial' use of someone’s identity. But the Facebook users who created the accused page had no commercial purpose," the groups wrote in a friend-of-the-court brief.

This week, a California appellate court threw out all of Knight's claims. The appellate judges ruled that Knight didn't show that his right of publicity was infringed on by the Facebook page.

"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," the appellate court wrote. "He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way."

The appellate court also said the posts concerned matters of public concern. "The issue involved the danger of trucks on highways driven by sleep-deprived drivers," the judges wrote. "Google searches for tired truck drivers reveals millions of results. It is an issue of tremendous concern."

The EFF cheered news of the appellate decision, writing that the trial judge's original ruling would have threatened free speech.

"It would have effectively given people a veto right over speech about them that they didn’t like (as long as that speech appeared on a platform with advertising)," the EFF wrote. "The ruling places an important limit on the right of publicity and is a victory for online speech."