Beverly (Bev) Stayart is a Wisconsin resident who is a self-proclaimed “positive and wholesome” animal rights activist. She is a blog author and activist for wild horses, wolves, and baby seals. She additionally has two poems about baby seals that are “published” on an international (Danish) website. By some commentators, she has also been described as a “tireless bringer of lawsuits.”
Around 2010, Bev Stayart searched her own name in various search engines, including Yahoo! and Google. Apparently, in addition to the expected results, e.g., her own website pages and her blog entries, she was offended to find that her name was linked with Cialis, Levitra, and pornographic websites. Presumably, Bev Stayart’s name was linked with Cialis, Levitra, and pornographic websites, through the search engines’ paid placement advertising programs. For example, Google will, for such a paid advertiser, “automatically embed[] up to eleven ‘sponsored links’ to [an] advertiser’s website on each search results page.” That embedded coding can result in the search engine suggesting “related searches” that link to the advertiser’s websites.
Ms. Stayart was appalled that a search of her name directed the searcher to websites for Cialis, Levitra, and pornography. As a result, she began filing lawsuits. Ms. Stayart first sued Yahoo! in federal court on January 19, 2010, claiming a violation of her rights under Section 43(a) of the Lanham Act, which provides a “private remedy for a commercial plaintiff” whose “commercial interests have been harmed by a competitor.” Although noting Ms. Stayart’s “humanitarian efforts on behalf of baby seals, wolves and wild horses,” the Court concluded that Ms. Stayart had no “commercial” interest to protect.
So, Ms. Stayart tried again, by filing a second lawsuit against Google. The second lawsuit was based on Wisconsin’s broadly-worded, yet infrequently litigated, Privacy Statute, which prohibits misappropriation or “[t]he use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person.” Wis. Stats. § 995.50(2)(b). Wisconsin’s Privacy Statute has exceptions, however, and one of those exceptions is if the connection between the complained-of misappropriation and the defendant’s commercial purposes is incidental, rather than substantial. The Court concluded that the exception applied, because Ms. Stayart had failed to prove “that the connection between Stayart’s name and Google’s efforts to generate revenues through its use is ‘substantial rather than incidental.’”
Perhaps more importantly, however, the Court said that regardless of whether the connection was substantial, a second exception to Wisconsin’s Privacy Law, for matters of “legitimate public interest,” precluded her from a successful claim against Google. The Court found that Bev Stayart had made her name, in connection with Levitra (for example), a matter of public interest by filing her previous lawsuit against Yahoo! Consequently, it dismissed her complaint against Google.
Bev Stayart’s lawsuits against Yahoo and Google were, admittedly, not exemplary models of the art of pleading, e.g., a different result may have been reached in her claim against Yahoo had she originally plead a violation of her rights under Section 995.50 of the Wisconsin Statutes. If nothing else, however, Bev Stayart’s cases heed caution to those considering a privacy-based claim, because as soon as a claim is filed with a court, the public interest exception will operate to preclude any subsequent “kick at the cat.”
