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 directedtheir technical support service to delete Defendants from thePlaintiffs’ website; (2) on 13 September 2005 the technical servicedeleted Defendants’ names and informational pages from Plaintiffs’website; (3) after Defendants were deleted from the website, therewas no information about Defendants on the website, and no way tonavigate from Plaintiffs’ website to information about Hemmings orStevens, and; (4) after Defendants left Plaintiffs’ law firm,Plaintiffs made no use of information about Defendants. Thisevidence, which showed that Defendants could not prove thatPlaintiffs had misappropriated or used Defendants’ photographs orbiographical information after Defendants quit Plaintiffs’ lawfirm, met Plaintiffs’ initial burden of “proving that an essentialelement of the opposing party’s claim is nonexistent, or . . . thattheopposing party cannot produce evidence to support an essentialelement of his claim[.]” Collingwood, 324 N.C. at 66, 376 S.E.2dat 427 (citations omitted). This shifted the burden to Defendantsto produce evidence showing a genuine issue of material factregarding their counterclaim.
Defendants did not produce evidence contradicting Plaintiffs’evidence that, when Plaintiffs instructed the technical supportservice to delete Defendants from the website, the consultantremoved links referring to Defendants from the website. The filesfor these documents were stored as html code files on anothercomputer, called a server. Plaintiffs did not own the server, andno evidence was presented to suggest that Plaintiffs intended topreserve a copy of the deleted files. But, because the actual htmlcode was not removed from the server, it was theoretically possibleto use Google or another search engine to retrieve and view thedeleted pages. Defendants offered no evidence that any member ofthe public had accessed these files.
Defendants did not allege that Plaintiffs were negligent, butinstead brought a claim for the intentional tort of invasion ofprivacy. Assuming, arguendo, that after Plaintiffs removed allinformation and links pertaining to Defendants from Plaintiffs’website, an internet search engine might return links to some ofthe deleted biographical pages, Defendants fail to articulate howthis would constitute misappropriation of their image orbiographies for any commercial purpose:
[a]ccording to [Defendant] he was able toaccess [documents deleted from Plaintiffs’website] by entering the extended URL address. . . [Defendant] claims he was also able toaccess the [documents] through various websitesearches conducted through Google. . . .[Defendant] was able to unearth what is forall practical purposes a cyberspaceartifact[.] . . . Indeed, it is undisputedthat after the [13 September file deletions]the link[s] on [Plaintiffs’] website to[Defendants] . . . [were] deleted[.] . . .Beyond saying that his Google searches tookhim to [a] link that took him to [a copy ofthe deleted files,] . . . [Defendant] explainsnothing that would constitute clear andconvincing evidence of contumacy by[Plaintiffs].
Defendants did not produce evidence contradicting Plaintiffs’evidence that, when Plaintiffs instructed the technical supportservice to delete Defendants from the website, the consultantremoved links referring to Defendants from the website. The filesfor these documents were stored as html code files on anothercomputer, called a server. Plaintiffs did not own the server, andno evidence was presented to suggest that Plaintiffs intended topreserve a copy of the deleted files. But, because the actual htmlcode was not removed from the server, it was theoretically possibleto use Google or another search engine to retrieve and view thedeleted pages. Defendants offered no evidence that any member ofthe public had accessed these files.
Defendants did not allege that Plaintiffs were negligent, butinstead brought a claim for the intentional tort of invasion ofprivacy. Assuming, arguendo, that after Plaintiffs removed allinformation and links pertaining to Defendants from Plaintiffs’website, an internet search engine might return links to some ofthe deleted biographical pages, Defendants fail to articulate howthis would constitute misappropriation of their image orbiographies for any commercial purpose:
[a]ccording to [Defendant] he was able toaccess [documents deleted from Plaintiffs’website] by entering the extended URL address. . . [Defendant] claims he was also able toaccess the [documents] through various websitesearches conducted through Google. . . .[Defendant] was able to unearth what is forall practical purposes a cyberspaceartifact[.] . . . Indeed, it is undisputedthat after the [13 September file deletions]the link[s] on [Plaintiffs’] website to[Defendants] . . . [were] deleted[.] . . .Beyond saying that his Google searches tookhim to [a] link that took him to [a copy ofthe deleted files,] . . . [Defendant] explainsnothing that would constitute clear andconvincing evidence of contumacy by[Plaintiffs].
(Mike Frisch)
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