March 12, 2013 – A Wisconsin woman who alleged that Googling her name led to ads for drugs treating erectile dysfunction has lost her lawsuit against Google.
Google did not misappropriate Beverly Stayart’s name because “the use she alleges falls within two exceptions: public interest and incidental use,” the Seventh Circuit Court of Appeals explained in Stayart v. Google Inc., No. 11-3012 (March 6, 2013).
Stayart, of Elkhorn, argued that Google was using her name without permission to generate ad revenue – that is, the search engine giant violated state privacy law by using her name to trigger paid ads for drugs like Viagra and Levitra.
Wis. Stat. section 995.50(2)(b) prohibits the use of someone’s name for advertising purposes without prior written consent. Stayart said that “Google Suggest,” a search application, was recommending “bev stayart levitra” when entering “bev stayart.”
Google Suggest works to connect terms. If a Google user typed in “Green Bay,” the term “Green Bay Packers” would automatically appear as an option to choose.
Google filed a motion to dismiss for failure to state a claim, and the U.S. District Court for the Eastern District of Wisconsin ruled in favor of Google.
On appeal, a three-judge appeals court panel affirmed, noting the recent privacy case against Joan Rivers by a Wisconsin resident.
“Our analysis of Wisconsin’s misappropriation law in Bogie led us to affirm Wisconsin’s recognition of the newsworthiness or public interest exception to its misappropriation law,” wrote Judge Ann Claire Williams. “In Bogie, we also concluded that the developing right of privacy includes an incidental use exception that applies in Wisconsin.”
The panel ruled that search term “bev stayart levitra” was a matter of public interest “because Stayart has made it one – and, given the current lawsuit, ensures that it remains so.” The court noted that Stayart previously sued Yahoo on the same issue.
This Google lawsuit alleged misappropriation of Stayart’s name after she filed the Yahoo complaint, and court documents are matters of public interest, the panel noted.
“It follows that if court documents warrant the public interest exception, the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception,” Judge Williams wrote.
The incidental use exception also applied, the panel ruled, because of the tenuous connection between Google’s use of Stayart’s name and its commercial purpose.
“In fact, Stayart’s complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term ‘levitra’ and not Stayart’s name triggers the erectile dysfunction adds,” Judge Williams wrote.