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  • WisBar News
    June
    25
    2012

    Supreme Court May Hear Internet Advertising Dispute between Personal Injury Firms

    Joe Forward
    Legal Writer

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    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.

    Supreme Court May Hear Internet Advertising Dispute between Personal Injury Firms

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Supreme Court May Hear Internet 
Advertising Dispute between Personal Injury Firms 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.