The defendants party to a class action brought by putative classes of California and Alabama residents said that the right-to-publicity suit pending against them should be tossed in a motion to dismiss filed on Monday. As their first line of defense, Control Group Media Company LLC, Intelius LLC, and PeopleConnect Inc. argue that one plaintiff agreed to arbitrate his claims individually while both plaintiffs’ claims fail for myriad other reasons.
The southern California lawsuit filed in February asserts that the defendants operate websites that use the plaintiffs’ names and identities for a commercial purpose without their consent. The complaint points to four websites that visitors use to search for information about individuals for free, returning information like name, age, and location. These sample searches allow the defendants to promote and sell subscriptions for their paid services at the plaintiffs’ expense, the filing says, and in violation of California and Alabama’s right-to-publicity laws.
The defendants see it differently. The complaint attempts to use these laws “to attack this routine part of e-commerce—generating search results based upon user queries—that these statutes were never intended to cover,” the motion says. It defends their search results as no different from others such as “biographies” generated by Amazon.
Aside from its arbitration argument, the motion also asserts that the plaintiffs fail to state claims under California and Alabama right-to-publicity laws. For one, the defendants aver that the complaint lacks facts alleging that anyone beyond the plaintiffs and their attorneys actually searched for information about those plaintiffs, thereby poking a hole in the element requiring that the people searching websites illegally “used” the plaintiffs’ information.
The motion also utilizes a Section 230 Communications Decency Act (CDA) defense, noting that at least two courts have held defendant Intelius immune from suit under the CDA. The defendants say they satisfy the three-prong test and furthermore, fall into a category of computer service provider the Ninth Circuit has ruled immunized, namely that the websites the defendants operate “respond to a user’s voluntary search inquiry that informs them about the information the user wishes to see.”
The motion also raises California anti-SLAPP and First Amendment defenses. The dismissal hearing is scheduled for May 16 before Judge Michael M. Anello.
The plaintiffs are represented by Bursor & Fisher P.A. and Edelson PC. The defendants are represented by Jenner & Block LLP.
