Taryn Phaneuf Jun. 24, 2016, 8:44pm

REDWOOD CITY – A judge has allowed some claims by a self-titled “country rapper” against Facebook to survive the social media giant’s motion to dismiss.

Jason Cross, who performs as Mikel Knight, sued Facebook, as well as unnamed Facebook users, over pages on the site that the users created that criticize Cross and his methods for distributing his music. Cross brought a case against Facebook claiming the company breached its terms of service by not taking down the pages after he complained about bullying and harassment. He also claims Facebook interfered with contractual relations and misappropriated his likeness by placing ads on a page that used his name and image without his permission. The ads also led to an allegation of unfair business practices.

Facebook filed an anti-Strategic Lawsuit Against Public Participation motion to dismiss the case, which contends that the lawsuit intends to chill critical speech through costly litigation. Facebook argues that Section 230 of the Communications Decency Act, which protects online hosts of third-party content from being held liable for critical speech, provides immunity. The company also argued that the Facebook Terms of Service that say users can’t post bullying or harassing content isn’t a court-enforceable contract.

San Mateo County Superior Court Judge Donald Ayoob dismissed part of Cross’ claims but allowed the allegations over his likeness to continue. Ayoob said violations of someone’s rights of publicity are exempt from the Communications Decency Act because they are considered intellectual property in California.

Such a decision has far-reaching implications, Paul Alan Levy, an attorney with the Public Citizen Litigation Group, told the Northern California Record. He’s confident the decision will be overturned on appeal.

“You couldn’t have a Facebook without Section 230. People sometimes don’t like what other people say about them,” Levy said, adding other social media platforms and online review sites to the list of companies that would be affected. If holes in the law’s protection provided “a take-down-when-I-ask card,” or offered a gap where an online service could be held liable for content, “you couldn’t have a Facebook because then whenever anyone (complained) to Facebook, they’d have to wonder if they could win the case.”

Levy said the judge’s logic would allow any celebrity to sue for breach of publicity rights when his or her name and image are published in a magazine or on a website that is funded through advertising. But publishers (and Facebook users) don’t need permission to post about a celebrity. Rather, publicity rights are violated when a it’s likely that consumers would believe the person named or pictured is promoting a product.

“Somebody can’t use you in an ad – that’s very different from coverage, from commentary,” Levy said. He thinks the Facebook pages don’t leave room for anyone to think it has Cross’ endorsement.

Cross largely promoted his work by sending a team of young men on the road to sell CDs and other merchandise. Reports say these employees, the Maverick Dirt Road Street Team, tolerate poor conditions that led to collisions that have caused serious injuries and death. Levy, who called around to confirm reports, was told the staff sometimes use drugs to stay awake while driving.

Cross alleges in the lawsuit that he lost business, including a contract deal with the Dallas Cowboys, because of the comments and allegations posted on those pages.

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Menlo Park, CA

Public Citizen Litigation Group
1600 20th Street NW Washington, D.C. 20009

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