Golden Beach police officer David Guzman is on a new beat, he’s taking on Cupid.com, owned by NSI Holdings, Inc. to test the limits of online immunity for legal liability. Guzman claims that his Florida rights of publicity have been violated by NSI Holding’s Uniformdating.com dating site that focuses on “uniform professionals.” Specifically, Guzman claims he has never visited the site and the use of his name and photo violates his publicity rights.
NSI Holdings, in turn, claims that it has the rights to Officer Guzman’s online postings. The company claims there is a user profile on UniformDating.com that includes Guzman’s actual email address and correct birthdate. The terms of service grant the company essentially unlimited rights to use the uploaded content for advertising NSI Holding’s services and for a great many other uses.
According to the lawsuit, Guzan “has never used, nor does he have any interest in … dating services.” Guzman is also married. As the Sun Sentinel reports, “Guzman’s wife asked why his photo was on a dating service ad, forcing him to explain to his wife ‘that he had no idea.’” Apparently, Guzman took the additional step to file a lawsuit because NSI Holdings “was resistant,” and “astonishingly demanding” that Guzman “provide proof of his identity before removing the advertisements,” according to the story.
NSI Holdings also asserts that it has removed the offending content while Guzman alleges the company continued to run the advertisement after the removal request was made.
While this case will undoubtedly settle, from a legal standpoint, there are three possible outcomes.
If there was not an account under Guzman’s name, then the use of his name and likeness is a straightforward violation of Florida law. Fla. Stat. Ann. § 540.08, protects a person’s name, likeness, portrait, and photograph. This is typical of most states. The use of Guzman’s Facebook or Instagram account on an unauthorized third-party owned site to market the site would constitute a violation of this state right.
If Guzman had created this account (say during a moment of weakness), then NSI Holdings can reasonably rely on its terms of service to meet the need for “express written or oral consent.” While textualists might quibble that the terms of service agreement does not quite meet the writing requirement of state law and it is not oral, courts would likely see the oral or written to include a continuum of assent to which the agreement to abide by the terms of service would be sufficient.
The most interesting case is if a third party had created the Guzman account as a prank. This also seems a likely source of the account. If this were the situation, then NSI Holdings would not be able to rely on the terms of service, since Guzman had not, in fact, consented. On the other hand, if a court were to find that NSI Holdings had acted reasonably in relying on the creation of the user’s site, then it might not find it liable for violating the Florida statute.
NSI Holdings would need to establish that it had verified Guzman’s account in a way that made it reasonable to rely on its account procedures. For example, if the account required that the email be verified, then it is more likely NSI Holdings can rely on the consent provided in the terms of service agreement. If instead, anyone could create an account without even verifying the email, then the existence of the correct information in the account means very little.
The battle for Officer Guzman highlights why there is a need for a better system to make it easier for consumers to correct information posted online. The resort to a lawsuit for this conflict highlights the weakness in the online statutory scheme. This case could prove interesting, but it is unlikely that it will move past the filing stages before the parties settle the matter.