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Torts — invasion of privacy

Wisconsin Court of Appeals

Civil Certification

Torts — invasion of privacy

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

“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 practice described above is ‘unreasonable’ under the statute as a matter of law. 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.”

Certified by the Court of Appeals.

2011AP1769 Habush v. Cannon

Attorneys: For Appellant: Clark, James R., Milwaukee; Crawford, Adam E., Milwaukee; For Respondent: Gass, James R., Milwaukee; Hanan, Beth E., Milwaukee


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