Milwaukee Circuit Court Judge Charles F. Kahn, Jr. this week dismissed an invasion of privacy lawsuit by personal injury lawyers at the firm Habush Habush & Rottier against attorneys at the rival firm Cannon & Dunphy. The privacy claim stemmed from allegations that Cannon & Dunphy used the names Habush and Rottier to trigger search ads for its own firm.
The law firm's claim was based on a Wisconsin state law allowing suits for invasion of privacy if their name is used for commercial purposes without their permission. If that use is "unreasonable," a judge can issue an injunction banning it.
Kahn ruled that Cannon & Dunphy's use of the rival attorneys' names wasn't unreasonable for several reasons, including that it wasn't likely to confuse searchers. "Internet users, and consumers in general, have learned to be skeptical about the first impression they may receive from a web page or commercial advertisement," he wrote. "If a user earnestly looking for Robert L. Habush or Daniel A. Rottier ends up clicking on the link to the Cannon & Dunphy, S.C. website, that person will recognize the anomaly and return to view the remaining search results to find Mr. Habush or Mr. Rottier. The confusion, if any, is brief."
Santa Clara University law professor Eric Goldman, who called attention to the decision today, says the judge arrived at the right result, but got there through "shaky" reasoning. "The opinion was poorly constructed and inadequately cited," Goldman wrote.
Kahn's written opinion includes one especially problematic passage rejecting Cannon & Dunphy's argument that it has a free speech right to use names other than its own to trigger search ads. Kahn wrote that the ads that spurred the litigation don't implicate any free speech concerns because "the use of a computerized system to sequence search results is not speech."
Clearly, that's wrong. Computers don't decide by themselves what ads to return to users. On the contrary, search companies program computers to return pay-per-click links based on factors largely within marketers' control, like how much they're willing to pay and the relevance of their landing pages.
Perhaps for that reason, no other judge deciding these types of cases has blanketly said that search ads don't raise any free speech issues. Yes, trademark holders can limit the use of their names in ads in certain situations, such as when the ads cause confusion, but that's because judges balance free speech rights against other interests when deciding trademark disputes. But to rule that search ads aren't speech because the ads are computerized shows a profound misunderstanding of the Internet.