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The First Amendment and the Internet:

Stern v. Delphi Internet Services Corp., 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995


Controversial radio celebrity Howard Stern brought this action against Delphi because it had used his photograph without his permission in an advertisement for an on-line bulletin board. The court held that Delphi, which provides "hard information" including news, stock prices and reference material as well as computer games and user interaction such as e-mail, on-line conferences and bulletin boards, was a news disseminator like a television network or news vendor, and thus entitled to full First Amendment protections.


Delphi ran the ad in a magazine and newspaper to entice readers to sign up for its Internet service. Stern alleged that the defendantís use of his name and photo in the ad violated the New York Civil Rights Law ("the CRL") which makes commercial misappropriation of a personís name or likeness a misdemeanor and authorizes a civil action for damages and injunctive relief (for example, a court order that Delphi cease running the ad). Delphi argued that its use of Sternís name and photograph fell within the incidental use exception to the CRL. That exception essentially provides that a news disseminator is entitled to display the name and photograph of a person who is the subject of the services it provides for the purpose of attracting and selling those services. In holding that Delphi was a news disseminator, the court found that it was analogous to a news vendor, a bookstore, a library, a television network or a letters-to-the-editor column of a newspaper, citing to Cubby, Inc. v. CompuServe, Inc, 776 F. Supp. 135, 140 (S.D. N.Y. 1991). It then noted that the First Amendment protects news distributors of publications and similarly "[a]ffording [First Amendment] protection to on-line computer services when they are engaged in traditional news dissemination, such as in this case, is the desirable and required result."


The court rejected Sternís argument that Delphi was not entitled to the incidental advertising exception since Stern had not approved the use of his photograph by Delphi because it is the purpose of the advertisement that determines whether it is protected, not whether permission to use the likeness has been granted. As long as the use is newsworthy and reasonably related to a matter of public interest, the exception applies. The court observed that what drives the incidental use exception is the First Amendmentís interest in protecting the ability of news disseminators to publicize their own communications and held that the fact that the advertisement used Sternís name and photo to indicate the subject matter of the computer bulletin board clearly brought it within the exceptionís ambit. Because any restriction of Delphiís ability to inform the public of the nature and subject of this service would be impermissible under the First Amendment, Delphi was awarded summary judgment and Sternís action was dismissed.

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