Supreme Court May Hear Internet Advertising Dispute between
Personal Injury Firms
By Joe Forward, Legal Writer,
State Bar of Wisconsin
June 25, 2012 – Personal injury lawyers Robert Habush and Daniel Rottier, of Habush & Rottier S.C., say a
competing personal injury firm’s Internet advertising strategy
violates their right to privacy. Now, the Wisconsin Supreme Court may
decide the issue.
In 2009, Cannon & Dunphy S.C. (the Cannon firm) submitted successful bids
to search engines Google, Yahoo! and Bing to use “Habush” and “Rottier” as “keywords”
that would place the Cannon firm in slot one on the page as a sponsored
advertisement.
In other words, the Cannon firm’s website was the first link to
pop up if someone typed in “Habush”
or “Rottier” using Google, Yahoo! or
Bing.
Habush and Rottier filed suit
for injunctive relief, arguing such an advertising practice violates
their privacy rights under Wis. Stat. section 995.50(2)(b).
Under that provision, using some else’s name for advertising
purposes without consent can constitute an invasion of privacy.
The circuit court granted summary judgment to the Cannon firm, ruling
that the advertising practice was an invasion of privacy but there was
no proof the invasion was “unreasonable.”
The Wisconsin Court of Appeals recently certified
the case, Rottier v. Cannon, 2011AP1769 (June 21, 2012), to the Wisconsin
Supreme Court.
The appeals court asks the supreme court to decide whether the Cannon
firm’s advertising practice constitutes an invasion of privacy,
whether Habush and Rottier must prove
the invasion was unreasonable and, if so, whether the advertising
practice is unreasonable.
“We conclude that this case is appropriate for certification
because the issues presented here are novel and likely to have
wide-ranging impact,” the appeals court wrote in its
certification.
According to the certification, the Cannon firm argues that no invasion
of privacy occurred because Internet searchers, not the Cannon firm,
“used” the plaintiffs’ names in voluntary searches and
the sponsored ads did not reference the plaintiffs.
“The defendants analogize this to a situation in which a business
might buy space on a billboard that is located in close proximity to a
billboard bearing a competitor’s add, which would not ordinarily
be considered a ‘use’ of the competitor’s name,”
the appeals court explained.
The appeals court notes a lack of Wisconsin precedent on this
particular issue: “We do not doubt that, as a general proposition,
privacy may be invaded using online information, including by uses that
ultimately rely on the complex, proprietary algorithms that produce
search results. However, the parties do not call our attention to
Wisconsin precedent addressing anything even remotely resembling this
factual context,” the appeals court wrote.
