Antitrust Law Daily Wrap Up, PRIVACY—7thCir: Google Not Liable For User’s Name Triggering Erectile Dysfunction Search Results , (Mar 7, 2013)

By Jody Coultas, J.D.

Google Inc. did not violate Wisconsin’s privacy statute by allegedly misappropriating a person’s name and using it for commercial purposes, according to the U.S. Court of Appeals in Chicago (Stayart v. Google Inc., March 6, 2013, Williams, A.).

Beverly Stayart claimed that she was widely known and respected scholar of genealogy and leader in the animal rights movement. She believes that she was the only “Bev Stayart” or “Beverly Stayart” on the Internet and that her name carried significant commercial value. Stayart alleged that Google’s search engine used her name to trigger sponsored links, ads, and related searches to medications, including Levitra, Cialis, and Viagra.

Wisconsin’s right of privacy includes a prohibition on misappropriation, or the use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person.

The public interest exception precluded the claims, according to the court. Matters of legitimate public interest cannot form the basis of an invasion of privacy claim. The search term “bev stayart levitra” was a matter of public interest primarily because Stayart made it one by filing the lawsuit at issue and a substantially similar claim against Yahoo! Inc. Court documents fall under the public interest exception. As such, search terms that lead the public to court documents relating to Stayart or that capture key terms related to them are likewise entitled to the exception.

The incidental use exception to privacy claims also applied to Stayart’s claims, according to the court. Using a person’s name for advertising or trade purposes violates Wisconsin’s privacy law only if there is a substantial, rather than incidental, connection between the use and the defendant’s commercial purpose. Stayart’s failed to allege that the connection between her name and Google’s efforts to generate was substantial. Rather, the search term “levitra” and not Stayart’s name triggered the erectile dysfunction ads.

The case is No. 11-3012.

Attorneys: Gregory A. Stayart for Beverly Stayart. James D. Peterson (Godfrey & Kahn S.C.) for Google Inc.

Companies: Google Inc.; Yahoo! Inc.

Cases: Privacy IllinoisNews IndianaNews WisconsinNews