Habush v. Cannon

• Citation: 2013 WI App 34,828 N.W.2d 876,346 Wis.2d 709
• Decision Date: 21 February 2013
• Docket Number: No. 2011AP1769.,2011AP1769.
• Court: Court of Appeals of Wisconsin
• Parties: Robert L. HABUSH and Daniel A. Rottier, Plaintiffs–Appellants, v. William M. CANNON, Patrick O. Dunphy and Cannon & Dunphy, S.C., Defendants–Respondents.

346 Wis.2d 709

828 N.W.2d 876

2013 WI App 34

Robert L. HABUSH and Daniel A. Rottier, Plaintiffs–Appellants, ^†

v.William M. CANNON, Patrick O. Dunphy and Cannon & Dunphy, S.C., Defendants–Respondents.

No. 2011AP1769.

Court of Appeals of Wisconsin.

Submitted on Briefs June 8, 2012.

Opinion Filed Feb. 21, 2013.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of James R. Clark and Adam E. Crawford of Foley & Lardner LLP, Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of J. Ric Gass of Gass Weber Mullins, LLC, Milwaukee.

Before LUNDSTEN, P.J., HIGGINBOTHAM and BLANCHARD, JJ.

LUNDSTEN, P.J.

[346 Wis.2d 711]¶ 1 This appeal concerns the right of privacy, as codified in Wis. Stat. § 995.50(2)(b),¹and the practice of using a person's name as a “keyword” search term in an Internet search engine. Here, the law firm Cannon & Dunphy bid on the search terms “Habush” and “Rottier” through Google, Yahoo!, and Bing search engines. Cannon & Dunphy, by successfully bidding on the names Habush and Rottier, assured that, when a person entered either name as a search term into one of these search engines, a link to Cannon & Dunphy's website would appear as a “sponsored link” above the “organic” link to the law firm of Habush Habush & Rottier. Attorneys Robert Habush and Daniel Rottier contend that, by successfully bidding on their names, Cannon & Dunphy violated § 995.50(2)(b) by using their names for advertising or trade purposes. We conclude that Cannon & Dunphy's “use” of the names Habush and Rottier is not “use” within the meaning of § 995.50(2)(b). We therefore affirm the circuit court's decision granting summary judgment in favor of Cannon & Dunphy.²

Background

¶ 2 Robert Habush and Daniel Rottier are trial attorneys and shareholders in the firm of Habush Habush & Rottier. It is undisputed that Habush and Rottier are both well-known personal injury trial attorneys and their names have commercial and advertising value. Cannon & Dunphy is a law firm with a specialty in personal injury cases.

¶ 3 Internet search engines like Google, Yahoo!, and Bing produce at least three types of search results for Internet searchers: organic results, advertising results, and sponsored results. Organic results are lists of links to websites that are produced based on algorithms developed by each search engine. Advertising and sponsored results are produced by allowing advertisers to bid on and pay for the use of keyword search terms. When a search engine user enters keywords that have been bid on, lists of links to the websites of successful bidders are displayed in a special position on the user's web browser. “Advertising” results generally appear to the right of the organic search results. “Sponsored” results generally appear above the organic results and are usually set in background shading with the words “sponsored link” or “ad.”

¶ 4 Beginning in 2009, Cannon & Dunphy bid on the keyword search terms “Habush” and “Rottier” through the search engines Google, Yahoo!, and Bing. This bidding assured that, in response to an Internet user's search of the terms “Habush” or “Rottier,” links to the website of Cannon & Dunphy would appear as the first result above the organic results lists. Under the bidding arrangements, Cannon & Dunphy's successful bids mean that it pays the search engine companies each time an Internet user clicks on Cannon & Dunphy's sponsored links. The links to the Cannon & Dunphy website and the law firm's website itself contain no reference to the names Habush or Rottier.

¶ 5 Robert Habush and Daniel Rottier sued Cannon & Dunphy, William Cannon, and Patrick Dunphy (collectively “Cannon & Dunphy”). Habush and Rottier alleged that, by bidding on the keyword search terms “Habush” and “Rottier,” Cannon & Dunphy used the names for advertising purposes without Habush's and Rottier's written consent in violation of Wis. Stat. § 995.50(2)(b). Habush and Rottier sought equitable relief in the form of an injunction, as well as attorneys' fees, pursuant to § 995.50(1)(a) and (c). ³

¶ 6 The parties filed cross-motions for summary judgment. The circuit court determined that Habush and Rottier must prove two elements: 1) there was an invasion of privacy under Wis. Stat. § 995.50(2)(b); and 2) that the invasion of privacy was done “unreasonably” within the meaning of § 995.50(1). The circuit court concluded that Habush and Rottier succeeded in establishing the first element, that Cannon & Dunphy used the names Habush and Rottier for the purposes of advertising or trade by bidding on them as keyword search terms, but did not establish the second element, that such an invasion was unreasonable. The court, therefore, granted summary judgment in favor of Cannon & Dunphy. While our analysis differs, we agree with what we understand to be the circuit court's pivotal reasoning—that the use of the names here is different in kind from the type of use the statute is intended to cover. Accordingly, we affirm the circuit court.

Discussion

¶ 7 Habush and Rottier argue that the undisputed facts show that Cannon & Dunphy violated Wis. Stat. § 995.50(2)(b). We begin with a brief summary of the disputed statutory provisions.

¶ 8 Wisconsin Stat. § 995.50(1) entitles anyone “whose privacy is unreasonably invaded” to equitable relief, compensatory damages, and reasonable attorney fees. Section 995.50(2) contains four alternative ways that a party's privacy might be invaded. The privacy right at issue here is § 995.50(2)(b), which provides:

(2) In this section, “invasion of privacy” means any of the following:

....

(b) 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 or, if the person is a minor, of his or her parent or guardian.

¶ 9 Thus, on its face, Wis. Stat. § 995.50(2)(b) requires only proof of the following:

1. “use ... of the name, portrait or picture of any living person”;

2. “use” that is “for advertising purposes or for purposes of trade”; and

3. “use” without “written consent.”

The parties, however, focus their attention on whether the term “unreasonably invaded” in § 995.50(1) adds an element of proof to this list.

¶ 10 Broadly speaking, the circuit court and Cannon & Dunphy take the position that “unreasonably invaded” is an additional requirement that both limits and defines the reach of § 995.50(2)(b). Habush and Rottier, on the other hand, contend that it would be “nonsensical to engraft ... an additional unreasonableness requirement on top of” the requirements already contained in the defined violations in the subsections of § 995.50(2), including the subsection at issue here, § 995.50(2)(b). Habush and Rottier seemingly assume that, if there is no additional “unreasonably invaded” element, it is obvious that Cannon & Dunphy's use of their names is a violation of § 995.50(2)(b). In sum, the circuit court and the parties primarily see this case as turning on whether § 995.50(1), with its “unreasonably invaded” language, adds an additional element to § 995.50(2)(b). In our view, this framing of the issue needlessly complicates resolution of this particular dispute.

¶ 11 As Habush and Rottier point out, § 995.50(2)(b) is modeled after a New York statute that has no “unreasonably invaded” language. Consequently, apart from Habush's and Rottier's explanation as to why we should not read “unreasonably invaded” language as imposing an additional element of proof on a plaintiff suing under § 995.50(2)(b), Habush's and Rottier's argument effectively explains why, in their view, Cannon & Dunphy's keyword bidding constitutes prohibited “use” within the meaning of § 995.50(2)(b). In essence, we agree with Habush and Rottier that this latter topic is the key, but disagree on the coverage of § 995.50(2)(b).

[346 Wis.2d 717]¶ 12 Accordingly, we direct our attention to the meaning of the term “use” in § 995.50(2)(b) and whether Cannon & Dunphy's actions constitute “use” within the meaning of that term.

¶ 13 Our reframing of the issue does not prejudice Habush and Rottier. For example, although Habush's and Rottier's “incidental use” argument is placed in the context of a discussion of “unreasonably invaded,” the substance of their argument is that we should read “use” in § 995.50(2)(b) broadly. Habush and Rottier write:

The common-law doctrine of “incidental use” prevents the Subsection (2)(b) tort from being applied to minor or trivial uses of another person's name, or in publications with news or other literary or entertainment value, which do not exploit the commercial value associated with a living person's name. The words “unreasonably invaded” should not be construed any broader than necessary to keep these incidental uses from the statute's reach.

The gist of Habush's and Rottier's argument here, and elsewhere, is that use of any type should be covered if such use is an attempt to exploit the value of a name or image. This is an argument we fully address below.

¶ 14 In effect, our approach assumes without deciding that Habush and Rottier are correct that they need not meet an additional “unreasonably invaded” requirement. And, in the context of interpreting the term “use,” we address all of Habush's and Rottier's substantive arguments on the coverage of § 995.50(2)(b). Accordingly, from this point forward, we speak in terms of the meaning of “use,” and sometimes cast the parties' arguments the same way. ⁴

[346 Wis.2d 718]¶ 15 Our interpretation of the word “use” in Wis. Stat. § 995.50(2)(b) is guided by the following statutory interpretation principles:

This case presents a question of statutory interpretation, which we review de novo. The purpose of statutory interpretation is to determine what a statute means in order to give the statute its full, proper, and intended effect. “We begin with the statute's language because we assume that ...