November 2016 • Volume 104 • Number 11 • Page 12
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Court rejects right-of-publicity claim against Avvo
A federal district court found that Avvo did not run afoul of the Illinois Right of Publicity Act by creating profile pages without plaintiffs' consent and using them to sell advertising to competing attorneys.
On March 4, 2016, a class action lawsuit was filed against Avvo, Inc. in the United States District Court for the Northern District of Illinois. The complaint, originally captioned as Bernstein v. Avvo, Inc., was amended in May, removing Moria Bernstein as the named plaintiff and replacing her with Chicago attorney John Vrdolyak.
The reason for the amendment was to keep the case in the Northern District of Illinois. There was a question whether Bernstein had claimed her Avvo.com profile, subjecting her to the website's terms of service, which include a forum selection clause. Vrdolyak had never claimed his profile, and was made the named plaintiff.
Both the original and amended complaint alleged that Avvo's business model violated the Illinois Right of Publicity Act ("IRPA"). (The April 2016 edition of LawPulse discussed the claims raised in the original complaint. https://www.isba.org/ibj/2016/04/lawpulse/isavvoviolatingattorneysrightofpubl.)
On June 6, Avvo filed a Rule 12(b)(6) motion to dismiss for failure to state a claim, arguing that the content of its website is protected speech under the First Amendment and that, even if not, the IRPA does not apply to the type of communications contained on the website. Avvo.com publishes listings of attorney information, which it obtains from public sources, such as Illinois' ARDC.
Citing a series of Supreme Court rulings that have upheld the right to disseminate publicly available information, Avvo argued, "it is a fundamental principle of Unites States Supreme Court jurisprudence that the First Amendment protects the republication of publicly available information, including information far more sensitive than at issue here." See Memorandum of Law in Support of Defendant's Motion, 16-cv-02833, Dkt. #25, p. 5.
Avvo further argued that even though it supported its publication by selling advertising, it was no different than traditional print media, which enjoys First Amendment protections. Avvo suggested that taking Vrdolyak's position would expose publishers to "innumerable" right of publicity claims. To do so would remove "the lifeblood of American media." Id. at p. 7. "Indeed, this basic advertising business model existed in 1789, when the Founders adopted the First Amendment." Id.
Avvo also argued that even if the First Amendment does not protect it, the IRPA does not apply to its publication of profile pages because they are a non-commercial use of Vrdolyak and the class members' likenesses. Noting that the legislative intent behind the IRPA was to prevent the commercial use of a person's likeness, Avvo said that Vrdolyak did not allege that his name or likeness was used in any advertisements, only that advertisements were placed on his profile page. "Avvo's lawyer directory conveys truthful information on matters of public concern: the backgrounds and qualifications of attorneys licensed by the state." Id. at pp. 8-9.
It cited supporting case law where magazines and television programs (supported by ad revenue) were found not to violate IRPA, even though there was a commercial component to the use of an individual's likeness. Similarly, Avvo's use of Vrdolyak's name was solely to communicate information about him, it argued.
Court: Avvo site is entitled to full First Amendment protection
In response to Avvo's motion, Vrdolyak argued that Avvo misstated the nature of his claims. "The narrow issue in this case is whether Avvo's use of Plaintiff's and Class members' identities to sell advertising constitutes a misappropriation of their identities for commercial purposes, and, therefore, is a violation of the IRPA." See Plaintiff's Response To Defendant's Motion To Dismiss, 116-cv-02833, Dkt #34, at p.5.
Vrdolyak relied heavily on the seventh circuit's opinion in Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014), which set forth a multi-prong test to help determine whether speech is commercial or noncommercial. Vrdolyak argued that, like the advertisement in Jordan, Avvo's advertising was inextricably linked to the attorney profiles, making all of the speech commercial. "The prominent placement of the Sponsored Listings is an advertisement to other attorneys to join the Avvo Advertising program…as such, Avvo uses Plaintiff's and Class members' identities to advertise." Id. at p. 8. Vrdolyak pointed to the fact that the profiles themselves could be posted without placing advertisements on them, and specifically the fact that the court's own name and likeness was displayed on an unclaimed Avvo profile with no advertisements.
Ultimately, the court was not persuaded. It found that because not every profile contains and advertisement, and because none of the advertisements used the plaintiff's name, "the court views what defendant does as more akin to the yellow pages directory, which receives First Amendment protection, than the advertisement that Jewel placed in Jordan." See Memorandum Opinion and Order, 16-cv-02833, Dkt #36 at p. 7.
Continuing with the Jordan analogy, the court found that Avvo's actions were more like Sports Illustrated, which published Jewel's ad. "Defendant publishes non-commercial information and sells and places advertisements within that information." Id. Just like ads in a magazine do not convert the whole magazine into an ad, the court held that "nor do the Sponsored Listings turn the entire attorney directory into commercial speech. Consequently, the court concludes that defendant's publications are fully protected by the First Amendment." Id.