Tuesday, May 5, 2009

Cyberspace Artifact Not Misappropriation Of Name

A law firm settled litigation with two departing partners that had been initiated in the wake of the break up. Thereafter, the firm sued the partners for alleged breach of the terms of the settlement. The departing partners claimed breach of the "non-disparagement" clause of the settlement. The North Carolina Court of Appeals affirmed the judgment for the law firm. It rejected a claim of misappropriation of name or likeness based on the alleged failure of the law firm to remove their biographical information from the firm's web page:

...Plaintiffs' uncontradicted evidence established that: (1) shortly after Defendants left the law firm, Plaintiffs directed their technical support service to delete Defendants from the Plaintiffs' website; (2) on 13 September 2005 the technical service deleted Defendants' names and informational pages from Plaintiffs' website; (3) after Defendants were deleted from the website, there was no information about Defendants on the website, and no way to navigate from Plaintiffs' website to information about Hemmings or Stevens, and; (4) after Defendants left Plaintiffs' law firm, Plaintiffs made no use of information about Defendants. This evidence, which showed that Defendants could not prove that Plaintiffs had misappropriated or used Defendants' photographs or biographical information after Defendants quit Plaintiffs' law firm, met Plaintiffs' initial burden of “proving that an essential element of the opposing party's claim is nonexistent, or . . . thatthe opposing party cannot produce evidence to support an essential element of his claim[.]” Collingwood, 324 N.C. at 66, 376 S.E.2d at 427 (citations omitted). This shifted the burden to Defendants to produce evidence showing a genuine issue of material fact regarding their counterclaim.
    Defendants did not produce evidence contradicting Plaintiffs' evidence that, when Plaintiffs instructed the technical support service to delete Defendants from the website, the consultant removed links referring to Defendants from the website. The files for these documents were stored as html code files on another computer, called a server. Plaintiffs did not own the server, and no evidence was presented to suggest that Plaintiffs intended to preserve a copy of the deleted files. But, because the actual html code was not removed from the server, it was theoretically possible to use Google or another search engine to retrieve and view the deleted pages. Defendants offered no evidence that any member of the public had accessed these files.
    Defendants did not allege that Plaintiffs were negligent, but instead brought a claim for the intentional tort of invasion of privacy. Assuming, arguendo, that after Plaintiffs removed all information and links pertaining to Defendants from Plaintiffs' website, an internet search engine might return links to some of the deleted biographical pages, Defendants fail to articulate how this would constitute misappropriation of their image or biographies for any commercial purpose:
        [a]ccording to [Defendant] he was able to access [documents deleted from Plaintiffs'website] by entering the extended URL address . . . [Defendant] claims he was also able to access the [documents] through various website searches conducted through Google. . . . [Defendant] was able to unearth what is for all practical purposes a cyberspace artifact[.] . . . Indeed, it is undisputed that after the [13 September file deletions] the link[s] on [Plaintiffs'] website to [Defendants] . . . [were] deleted[.] . . . Beyond saying that his Google searches took him to [a] link that took him to [a copy of the deleted files,] . . . [Defendant] explains nothing that would constitute clear and convincing evidence of contumacy by [Plaintiffs].

(Mike Frisch)


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