• by Wendy Davis  @wendyndavis, December 26, 2024

Former Arkansas Governor Mike Huckabee is seeking to revive his battle with Meta Platforms over ads that misappropriated his name and image to sell CBD gummies.

In a proposed amended complaint filed earlier this month with U.S. District Court Judge Gregory Williams in Delware, Huckabee argues that Meta was reckless when it published phony ads that made it appear as if he endorsed CBD.

“For more than four years now, Meta has known that public figures, such as the governor, have had their names, images, and likenesses used to promote CBD products without their knowledge and consent,” Huckabee alleges, adding that author J.K. Rowling, actress Jennifer Aniston and skateboarder Tony Hawk are among the people to publicly condemn the wrongful use of their images in phony CBD endorsements.

Huckabee's papers come in a battle dating to June, when Huckabee sued Meta over phony endorsements in ads -- including one that linked to a fake Fox News site. The complaint included a claim that Meta violated an Arkansas right-of-publicity law that gives people the right to control the commercial use of their names and images.

Williams dismissed Huckabee's case with prejudice last month, ruling that even if the allegations in his complaint were proven true, they wouldn't show that Meta knew the ads were fake.

“Governor Huckabee has failed to make any allegations that would allow the reasonable inference that Meta had any 'fault,'” Williams wrote at the time.

Huckabee, who was recently tapped to serve as ambassador to Israel, is now asking Williams to reconsider his dismissal order and allow the filing of an amended complaint.

Huckabee's attorneys say in the proposed amended complaint that Arkansas doesn't only impose liability when companies know they are misappropriating someone's identity. Instead, according to his lawyers, the state's right-of-publicity law also imposes liability when companies recklessly misappropriate identity.

The amended complaint alleges that Meta “has its systems” review ads before they're published, and says the “production process provides Meta with ample opportunities to detect ads that are fraudulent or that misappropriate information or images that belong to others.”

Even though Williams threw out the lawsuit last month, he ruled against Meta on a key point: He said Section 230 of the Communications Decency Act didn't protect Meta from Huckabee's claims. That law generally immunizes web platforms from liability for content created by third parties (with some exceptions, including one for content that infringes intellectual property rights).

Until August, Meta would likely have had a clear argument that Section 230 immunized the company from lawsuits over ads created by others. But in August, the 3rd Circuit Court of Appeals -- which covers Delaware, New Jersey and Pennsylvania -- issued significantly curbed Section 230's protections in a lawsuit involving TikTok. (TikTok has said it is considering appealing that ruling to the Supreme Court, but hasn't yet done so.)

Without Section 230, lawsuits against tech companies over content provided by third parties are likely to include assertions similar to Huckabee's allegations of recklessness, according to Santa Clara University law professor Eric Goldman.

“This is what a world without Section 230 is going to look like,” he says of Huckabee's amended complaint. “We're going to debate over who knew what when.”