Robert L. Habush v. William M. Cannon

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Appeal No. 2011AP1769 Cir. Ct. No. 2009CV18149

WISCONSIN COURT OF APPEALS
DISTRICT I

ROBERT L. HABUSH AND DANIEL A. ROTTIER,

PLAINITIFFS-APPELLANTS, FI LFD
V.
JUN 21, 2012
WILLIAM M. CANNON, PATRICK O. DUNPHY
AND CANNON & DUNPHY, S.C., Cerk of Supreme Court
DEFENDANIS-RESPONDENTS.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Lundsten, P.J., Higginbotham and Blanchard, JJ.

Pursuant to WIS. STAT. RULE 809.61 (2009-10),! this appeal is
certified to the Wisconsin Supreme Court for its review and detennination.

ISSUES

Personal injury attomeys Robert L. Habush and Daniel A. Rottier
(plaintiffs) seek injunctive relief based on their claim that a second set of personal
injury attomeys, who compete with the plaintiffs for legal business, purchased a
form of Intemet advertising from Word Wide Web search engines that invaded
the plaintiffs’ nght to privacy, in violation of WIS. STAT. § 995.50(2)(b). It is

' All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.

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undisputed that William M. Cannon, Patrick O. Dunphy, and their law firm,
Cannon & Dunphy, S.C., (defendants), submitted successful bids to three search
engines—Google, Yahoo!, and Bing—identifying “Habush” and “Rottier” as so-
called “keywords” for the advertising benefit of the plaintiffs, and did so without
having directly obtained written consent from either of the plaintiffs. The result of
the defendants’ successful bids was that, when anyone using one of these search
engines entered either of these keywords as a search term, advertising for the
defendants would appear at the top of the resulting search engine results page.
Specifically, the advertising would appear in the form of a “sponsored” web page
link for the defendants’ law firm.
The circuit court dismissed the plaintiffs’ action on summary
judgment. Although the court concluded that the defendants’ successful bid for
the use of keywords constituted an invasion of the plaintiffs’ privacy rights, the
court further concluded that, beyond showing an invasion, a claimant under WIS.
STAT. § 995.50(2)(b) must present evidence that the invasion is “unreasonable.”
Relying on a wide range of factors, the court concluded that the plaintiffs failed to
offer proof upon which a jury could find that the defendants unreasonably invaded
their privacy.
This case presents what we discern to be at least three major issues:
(1) whether the practice described above constitutes an invasion of privacy under
WIS. STAT. § 995.50(2)(b), assuming that the statute does not require that any such
invasion be “unreasonable”; (2) if so, whether § 995.50(2)(b) requires as an
element that such a privacy invasion be “unreasonable”; (3) if so, whether the

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practice described above is “unreasonable” under the statute as a matter of law.2
We conclude that this case is appropriate for certification because the issues
presented here are novel and likely to have wide-ranging impact, because the
supreme court has not interpreted § 995.50 in any context even generally
resembling this one, and because the legislature has expressly directed in
§ 995.50(3) that the statute be “interpreted in accordance with the developing
common law of privacy,” presumably something the legislature anticipated would
ultimately be done by the supreme court. We will discuss these reasons for
certification in more detail below, but we first provide additional factual
background and discussion of the parties’ arguments on the main issues.
BACKGROUND
The parties stipulated before the circuit court, and the court agreed,
that there are no material disputed facts. We agree, at least with respect to the
issues we focus on.
As regular users of search engines know well, a computer user with
access to the Internet may visit the website of a search engine, and on that site
enter words or phrases that relate to a topic. The search engine then searches for
information on the World Wide Web, and generates for the user a list of web page
links related to this topic, from which the user selects one or more links of greatest
interest by clicking on them. Web page links listed on a search engine results page
2 The defendants also argue: that the named plaintiffs, as law firm shareholders, lack
standing to pursue this action in their individual capacities; that the defendants’ “truthful”
“commercial speech” is lawyer marketing protected by the First Amendment; and that injunctive
relief is not available to the plaintiffs because their own advertising practices leave them with
“unclean hands.” While one or more of these issues may also merit supreme court review, we
focus on the issues most directly relating to WIS. STAT. § 995.50.

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are termed “organic” if they are generated by the search engine without producing
any advertising of the sort at issue in this case. In contrast, when the form of
advertising at issue here is used, “sponsored” web page links appear above the
“organic” results. In the words of the circuit court: “Each sponsored link has the
look and feel of an organic result with slight background shading and the
unobtrusive appearance of the small-text words: ‘sponsored link,’ ‘sponsored
result,’ or ‘ad.’”
As the circuit court further explained (footnotes omitted):
Beginning in 2009, [the defendants] contracted with
Google, Yahoo!, and Bing for a sponsored link to their law
firm website to appear as the very first result, above
organic results, in response to any user’s input of certain
search terms. Specifically, it purchased from Google the
right to have the Cannon & Dunphy, S.C. link appear
whenever the user would type either the word “Habush” or
the word “Rottier” into the search engine. [The defendants]
made similar arrangements with Yahoo! and Bing.
The link that appears first in response to a search for
the word “Habush” or the word “Rottier” is a link to the
Cannon & Dunphy, S.C. website. Therefore, it might
appear to an unsophisticated user that the Cannon &
Dunphy, S.C. link is among the most relevant responses to
a search for “Habush” or “Rottier.”
In its successful bids, the defendants committed to pay the search engines a certain
price for each user click on the defendants’ sponsored link following a search
using one of the keywords.3
3 The circuit court drew the conclusion that the defendants were no longer using the
sponsored links in the way challenged by the plaintiffs by the time the court addressed the
summary judgment motions. However, as the circuit court noted, the case is not rendered moot
because the plaintiffs seek an injunction not only to remove any such links but also barring any
future use.

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Turning to the statute at issue, as most relevant here, WIS. STAT.
§ 995.50 provides:
(1) The right of privacy is recognized in this state.
One whose privacy is unreasonably invaded is entitled to
the following relief:
(a) Equitable relief to prevent and restrain such
invasion, excluding prior restraint against constitutionally
protected communication privately and through the public
media;
(b) Compensatory damages based either on
plaintiff’s loss or defendant’s unjust enrichment; and
(c) A reasonable amount for attorney fees.
(2) In this section, “invasion of privacy” means any
of the following:
….
(b) The 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 or, if the person is a minor, of his or
her parent or guardian.
….
(3) The right of privacy recognized in this section
shall be interpreted in accordance with the developing
common law of privacy, including defenses of absolute and
qualified privilege, with due regard for maintaining
freedom of communication, privately and through the
public media.
DISCUSSION
Invasion of Privacy
The plaintiffs argue that, by arranging for the search engines to drive
consumers of legal services toward the defendants’ web page using the plaintiffs’
names, in the manner described above, the defendants have used the plaintiffs’

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names for advertising purposes without their written consent. As stated above, the
first major issue is whether the undisputed actions of the defendants constituted an
invasion of privacy, without reaching the “unreasonable” element discussed
separately below. Based on the language of the statute, the circuit court broke
down the invasion of privacy claim into four components: (1) use; (2) for
advertising purposes; (3) of the name of a living person; (4) without written
consent of that person. If each is proven, an invasion of privacy is established.
Without reciting all of the circuit court’s observations or all
arguments of the parties, a primary argument of the defendants is that they did not
“use” the plaintiffs’ names. The gravamen of the defendants’ argument is that
only the Internet searchers actually “used” the names of the plaintiffs, in launching
their independent and voluntary searches, and the challenged “sponsored” web
page links of the defendants did not in any way reference the plaintiffs. The
defendants’ arguments rest in part on New York authority that apparently equates
“use” with “display” in the context of a New York statute that the defendants
submit parallels the Wisconsin statute. However, the defendants do not identify
any Wisconsin authority to this effect.
On this point, the plaintiffs reply in part based on federal trademark
law, which they argue is analogous, and which the plaintiffs assert holds that
when, as here, an advertiser pays a search engine for each click to the advertiser’s
web page based on successful bids for triggering keywords, these are deemed
“uses” of the keywords.
In a related vein, the defendants argue that all they purchased from
the search engines was the right to have their advertisements displayed alongside
“organic” search results from “Habush” or “Rottier” searches, and therefore they

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cannot be said to have used the plaintiffs’ names for advertising purposes. 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 ad,
which would not ordinarily be considered a “use” of the competitor’s name.
The plaintiffs reply, in part, that the plain meaning of the terms
“use” and “for advertising purposes” readily apply to the processes used by the
search engines for which the defendants paid, and that the defendants made an
obviously exploitive use of their names and reputations that goes to the heart of
the purpose of WIS. STAT. § 995.50(2)(b). As for the defendants’ adjacent
advertising space argument, the plaintiffs rely in part on federal trademark law,
which they submit undermines the defendants’ argument.
The defendants also argue that the plaintiffs in fact consented in
writing to the use of their names in the challenged manner by allegedly entering
into their own, separate agreements with the search engines. However, it appears
to us that the circuit court correctly interpreted both the agreements at issue and
the meaning of “without ... written consent” in WIS. STAT. § 995.50(2)(b) to
conclude that the plaintiffs did not consent in writing in a manner recognized
under the statute.
“Unreasonable” As An Element
The parties present what each submits is a plain meaning
interpretation of the following sentence in WIS. STAT. § 995.50(1) and the two
interpretations conflict with each other: “One whose privacy is unreasonably
invaded is entitled to the following relief.” The plaintiffs argue that use of the
phrase “unreasonably invaded” is intended only as a generic, introductory
description, or placeholder, for the four specific forms or modes of privacy

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invasion particularly described at § 995.50(2)(a)-(d), and therefore there is no
“unreasonableness” element for a violation of § 995.50(2)(b), the provision at
issue in this case. The plaintiffs point out that the other three forms of invasion
include their own explicit “unreasonable” standards, and it would make little sense
for there to be an additional level of “unreasonable” for those forms, while
§ 995.50(2)(b) stands out as a form of invasion for which the legislature omitted
any requirement of a separate “unreasonableness” element. Under this view, the
legislature was simply indicating that the elements expressly set forth in
§ 995.50(2)(b), if proven, necessarily show that the invasion is an unreasonable
one.
The defendants argue that this approach would violate the rule
against treating legislative language as surplusage as well as the rule against
reading portions of a statute in isolation from each other. Instead, the defendants
argue, the plain meaning of WIS. STAT. § 995.50(1), when read in context, is that,
to be viable, all claims under § 995.50 must include proof of an “unreasonable”
invasion of privacy. As referenced above, the circuit court agreed with this
interpretation.
The defendants also cite one of the few Wisconsin Supreme Court
opinions to reference WIS. STAT. § 995.50 (under its current or its former statute
number, WIS. STAT. § 895.50 (2003-04)), which summarized “the right” at issue in
that section as being “the right of an individual to be free from unreasonable
interference by others in matters of which they are not concerned.” Zinda v.
Louisiana Pacific Corp., 149 Wis. 2d 913, 928, 440 N.W.2d 548 (1989)
(emphasis added) (referencing WIS. STAT. § 895.50 (2003-04)) and citing Prosser,
Privacy, 48 CALIF. L. REV. 383, 384-88 (1960)). However, as the plaintiffs point
out in reply, Zinda involved a claim under the subsection that has been

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renumbered § 995.50(2)(c), which has its own explicit “unreasonable” element,
not § 995.50(2)(b), and in addition the court in Zinda did not describe § 995.50 as
having a general “unreasonable” element for all subsections.
If Privacy Invasion, “Unreasonable” Invasion
The third major issue would be reached in the event that the court
determines that there was a privacy invasion in this case and that WIS. STAT.
§ 995.50(2)(b) contains an “unreasonable” element as a result of the language in
§ 995.50(1). That issue is whether the alleged privacy invasion here was
unreasonable as a matter of law based on the undisputed facts.
The circuit court’s discussion on this question ranged broadly,
touching on: historic methods of competition both generally (such as when
businesses in the same trade cluster together, sometimes into tight geographic
districts) and within the legal profession (where attorneys and firms could
historically obtain priority positions in telephone directories and the like by paying
premiums); the degree to which the individual reputations of law firm
shareholders Habush and Rottier may have become subsumed within the general
reputation of their multi-attorney, heavily advertised law firm (which is not a
“living person” with its own right of publicity); the lack of proof of actual
confusion by Internet searchers; the potential impracticality of an injunction, given
the fluid and ever-changing nature of Internet usages and search engine
methodologies; the lack of references to Habush or Rottier on the defendants’
sponsored link; and the lack of apparent attempts to enforce trademark or attorney
ethical standards in this area.
The plaintiffs challenge virtually all of the premises of the court’s
analysis, some of which raise fundamental questions about the reasonable and

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ordinary understandings and expectations of search engine users regarding
“sponsored” web links as compared to “organic” results.
In arguing against the circuit court’s conclusion that the defendants’
conduct was not “unreasonable,” the plaintiffs also cite a Wisconsin Supreme
Court opinion for general propositions that: (1) Wisconsin common law “has
consistently recognized a public policy interest in protecting the personal privacy
and reputations of citizens,” and (2) the privacy statute is one of “[s]everal
sections of the Wisconsin Statutes [that] evince a specific legislative intent to
protect privacy and reputation.” Woznicki v. Erickson, 202 Wis. 2d 178, 185,
187, 549 N.W.2d 699 (1996) (referencing WIS. STAT. § 895.50 (1993-94)).
However, these general observations appear to provide little specific guidance
here.
Factors Favoring Certification
With that background, as summarized above, we conclude that at
least four factors make this case a significant and novel one that is appropriate for
consideration by the supreme court.
The first factor is that it appears that the Wisconsin Supreme Court
has not yet interpreted WIS. STAT. § 995.50 in any context even generally
resembling this one, much less addressed specific features of § 995.50(2)(b) in the
context of now pervasive Internet search engines.4 Wisconsin was apparently one
4 In Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 386-87, 280 N.W.2d 129
(1979), the court held that use by defendant of the name “Crazylegs” on a shaving gel for women
violated plaintiff’s common law right of publicity, but the court explicitly noted that WIS. STAT.
§ 895.50(2)(b) (2003-04) (as noted below, renumbered WIS. STAT. 995.50 in 2006) had been
enacted after the challenged product was taken off the market, and the only question presented in
that case was whether plaintiff had a cause of action under the common law.

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of the last jurisdictions in the nation to adopt a statutory right to privacy, see Judith
Endejan, The Tort of Misappropriation of Name or Likeness Under Wisconsin’s
New Privacy Law, 1978 WIS. L. REV. 1029, 1029-30, and, for whatever set of
reasons, the statute enacted in 1977 has not been the topic of extensive litigation
reaching the supreme court.5 As a result, both parties primarily cite as persuasive
authority opinions from federal courts, from other state courts, or from such
authorities as the RESTATEMENT (THIRD) OF UNFAIR COMPETITION, but without
necessarily demonstrating that any of this persuasive authority is relevant to an
interpretation of the meaning of § 995.50.6
The second factor is that until recently, the following activity did not
exist: keyword-triggered advertising that uses “sponsored” web page links to
draw the potential attention of millions of Internet users who navigate from
search-engine results to web pages. The circuit court observed in this case that all
of the authorities that the defendants cited to the court, at least on one issue, “were
published decades before Google was created” in 1998. “[A]s Justice Cardozo
once noted, major technological changes often call for the transformation of law.”
Greg Lastowka, Google’s Law, 73 BROOK. L. REV. 1327, 1329 (2008) (citation
omitted). While the facts are not in dispute, the parties present sharply different
ways of characterizing the legal significance and meaning of Internet search
results generated by an advertiser who has paid for that form of public exposure.
We do not doubt that, as a general proposition, privacy may be invaded using
5 The statute was enacted in 1977 as WIS. STAT. § 895.50, but was renumbered WIS.
STAT. § 995.50 by 2005 Wis. Act 155, § 51, eff. April 5, 2006.
6 The plaintiffs observe that this case “appears to be one of first impression in the United
States courts.” They point as persuasive authority to a decision of an Israeli court, offering the
opinion in both its original Hebrew and an English translation.

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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. Moreover, as suggested above, the best legal
pathway in this new context is all the less certain in light of limited supreme court
precedent regarding the meaning of terms in WIS. STAT. § 995.50.
The third factor is the presence of the following provision in WIS.
STAT. § 995.50(3) (emphasis added): “The right of privacy recognized in this
section shall be interpreted in accordance with the developing common law of
privacy, including defenses of absolute and qualified privilege, with due regard for
maintaining freedom of communication, privately and through the public media.”
“Developing” a “common law of privacy” is not the primary function of the court
of appeals.
As a fourth factor, we note that any decision on these issues may
have widespread and significant ramifications for many individuals and businesses
in Wisconsin and beyond its borders. So far as we can determine from the briefs,
the legal issues presented are not necessarily limited to the narrow question of
whether competing law firms may bid, without prior written consent, for search
engine use of the names of each other’s principals, as occurred here. The effects
of any decision will be substantial in an age when going business concerns of
many types and sizes need to have a web presence and the purchase of search
terms for “sponsored hits” is apparently commonplace. It has been said: “fortunes
are won and lost based on Google’s results pages.” Lastowka, supra, at 1328.
In sum, we believe that the interpretation of WIS. STAT § 995.50
generally, and specifically § 995.50(2)(b), in this novel context with wide-ranging

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impact raises potentially recurring and significant questions of statewide
importance whose resolution requires development of the law. Thus, it is an
appropriate candidate for certification to the Wisconsin Supreme Court.