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Can Platforms Be Sued When Their Users Allegedly Violate Third Parties' "Rights of Publicity"?

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Free Speech

Eugene Volokh | 9.24.2021 2:02 PM

Title 47 U.S.C. § 230 generally blocks lawsuits (e.g., for libel, invasion of privacy, negligence, and the like) against online platforms based on material posted by third parties. Section 230(e)(2) contains an exemption for "any law pertaining to intellectual property"; this means, for instance, that federal trademark and copyright claims are generally allowed to go forward (though subject to their own rules and limitations, such as those set forth in the Digital Millennium Copyright Act).

But what about the so-called "right of publicity," which generally makes actionable certain commercial uses of a person's name or likeness? Is that an exempted "law pertaining to intellectual property," so that right of publicity claims against (say) Facebook based on right of publicity infringements by Facebook users or advertisers can go forward? Or is it a non-intellectual-property claim, which continues to be blocked by § 230? (Similar questions arise about state trademark claims.)

In yesterday's Hepp v. Facebook, a split Third Circuit panel (in an opinion by Judge Thomas Hardiman, joined by Judge Peter Phipps) said the case could go forward; there is now a circuit split on the subject, so it's possible that the Supreme Court will take the matter up. The panel began by concluding that the § 230(e)(2) exemption covered state intellectual property laws as well as federal ones:

Appellant Karen Hepp has worked in the news industry her entire adult life. Presently, she hosts FOX 29's Good Day Philadelphia. As is often the case for television personalities, Hepp's professional success as a newscaster depends in part on her reputation and social media following. She has built an "excellent reputation as a moral and upstanding community leader" and has amassed a sizeable social media following. So Hepp's endorsement can be valuable. Naturally, that value depends on her ability to control the use of her likeness.

In 2018, Hepp was told by coworkers that her photograph was making its way around the internet. The image depicts Hepp in a convenience store, smiling in the center of the frame's foreground. But the photograph was taken without Hepp's knowledge or consent. She knows neither the convenience store's location nor how the image was posted online. And she never authorized the image to be used in online advertisements for erectile dysfunction and dating websites….

[In particular, one such] post—which was an advertisement to a dating app, FirstMet—appeared on Facebook, which is one of the world's largest social media companies. The advertisement used Hepp's image to promote its dating service. And it encouraged Facebook users to "meet and chat with single women near you." …

In the twenty-five years since the Communications Decency Act was passed, there are precious few cases interpreting § 230's intellectual property provision. The first noteworthy case is Universal Communication Systems, Inc. v. Lycos, Inc. (1st Cir. 2007). There, a company sued internet message board providers alleging that some posts contained "false, misleading" content about the company's financial prospects. The suit alleged violations of federal law, as well as trade name dilution in violation of Florida law. The First Circuit treated the Florida dilution claim separately because "[c]laims based on intellectual property laws are not subject to Section 230 immunity." As to the merits of the state-law claim, the court reasoned that "[t]rademark injury arises from an improper association between the mark and [someone else's] products or services"—not from "criticism" leading to reputational harm. See Ultimately, the court held "that even though Section 230 immunity does not apply, the claim was properly dismissed as a matter of [Florida] trademark law" "because of the serious First Amendment issues that would be raised by allowing [Plaintiff's] claim." But that decision was necessary only because the court held § 230(e)(2) preserved the state law claim.

Soon after the First Circuit announced its decision in Lycos, the Ninth Circuit went the other way in Perfect 10, Inc. v. CCBill LLC (9th Cir. 2007). There, a website operator alleged violations of federal law and a state right of publicity law. The district court dismissed the complaint and the Ninth Circuit affirmed, reasoning that federal intellectual property's scope was more established compared to state laws. And it explained the Act's policy goal—to insulate the internet from regulation—would be hindered if federal immunity varied based on state laws. In the Ninth Circuit's view, § 230(e)(2) includes only "federal intellectual property." …

We disagree that "any law pertaining to intellectual property" should be read to mean "any federal law pertaining to intellectual property." … [T]he explicit references to state law in subsection (e) are coextensive with federal laws. But those references also suggest that when Congress wanted to cabin the interpretation about state law, it knew how to do so—and did so explicitly. Because the evidence cuts both ways, the structure does not change the natural meaning.........

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