47 U.S.C. § 230 Preempts State Right of Publicity Claims

From today’s decision by Judge John M. Younge in Hepp v. Facebook, Inc. (E.D. Pa.), which I think is likely correct (and which follows Ninth Circuit law but rejects the contrary view from two federal district courts in New Hampshire and New York):

Plaintiff is a newscaster [and co-anchor] who has worked for the Philadelphia-based Fox 29 news team since November 2010…. Plaintiff alleges that “[a]pproximately two years ago, [she] discovered through her co- workers and managers, that, without her consent, a photograph of her taken by a security camera in a convenience store in New York City was being used in online advertisements for erectile dysfunction and dating websites.” …:

• “[Her] photo was featured in a Facebook advertisement soliciting users to ‘meet and chat with single women.’”

• “[Her] photo was featured on Imgur under the heading ‘milf,’ which is a derogatory and degrading slang acronym that refers to a sexually attractive woman with young children.”

• “[Her] photo was featured on Reddit titled ‘Amazing’ in the subgroup r/obsf (‘older but still $#^@able’) and posted by a user known as ‘pepsi_next.’ There is a hyperlink for the photograph which links to the Imgur site.” …

[Title 47 U.S.C. § 230] states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and expressly preempts any state law to the contrary. In other words, internet service providers are not liable for third-party content. Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see also Green v. Am. Online, 318 F.3d 465, 470-71 (3d Cir. 2003). Under the statute there are, however, certain causes of action that are specifically not barred by § 230(c), including “any law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2).

“Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F. 3d at 330. In fact, many courts have observed that § 230 immunity should be broadly construed so as to implement Congress’s policy choice….

[1.] Plaintiff seeks to hold Defendants liable for information provided by another information content provider…. Plaintiff does not explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e., postings, advertisements, and short-looping videos that utilized Plaintiff’s image). Rather, it is reasonable to infer from the allegations in the Amended Complaint, and the exhibits attached thereto, that Defendants merely allowed the offending content to be posted on their respective platforms via third-party users.

[2.] Plaintiff’s claims seek to treat each Defendant as a “publisher or speaker” of the content posted by third parties. “The Third Circuit has held the CDA immunizes traditional publisher conduct, such as ‘deciding whether to publish, withdraw, or alter content.’” For the Defendants here, such decisions “involve deciding whether to provide access to third-party content or whether to delete the content from [their] archiv[e] or cache.” …

[3.] With respect to the CDA’s exclusion for “any law pertaining to intellectual property[,]” the Court recognizes there that there is a split of authority over the scope of this exclusion. Specifically, there is disagreement between the Ninth Circuit and some district courts over whether the CDA preempts state law intellectual property claims. Compare, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007) (holding that the CDA preempted a state right of publicity claim); Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1053 (9th Cir. 2019) (“We have observed before that because Congress did not define the term ‘intellectual property law,’ it should be construed narrowly to advance the CDA’s express policy of providing broad immunity.”); with Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (holding that the CDA did not preempt plaintiff’s right of publicity claim); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (“Section 230(c)(1) does not provide immunity for either federal or state intellectual property claims.”). {Moreover, the Court’s research has yielded no case law from any other appellate courts that has clearly resolved whether the CDA preempts right of publicity claims.} …

[This Court] finds that the reasoning of the Ninth Circuit in Perfect 10 is more consistent with the statutory text and purpose of § 230(c)…. [T]he Ninth Circuit … held that [a] defendant was entitled to § 230 immunity against plaintiff’s right of publicity claim, stating that the term ‘intellectual property’ is not defined in the statute, and that “[s]tates have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few.” The court noted that “[b]ecause such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue.”

The Ninth Circuit further reasoned that “[a]s a practical matter, inclusion of rights protected by state law within the ‘intellectual property’ exemption would fatally undermine the broad grant of immunity provided by the CDA.”  … This Court is persuaded by the reasoning in Perfect 10….

“While the scope of federal intellectual property law is relatively well-established, state laws protecting ‘intellectual property,’ however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals. Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various tate-law regimes.” …

The Court added this in a footnote:

The Court recognizes that on May 28, 2020, President Donald J. Trump issued an Executive Order relating to Section 230(c) …, which appears to be directed at preventing censorship by online platforms such as the moving Defendants in this case. The Policy section of the Executive Order states, in part: “In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic…. Online platforms are engaging in selective censorship that is harming our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.” … Having reviewed the Executive Order and the context in which it was issued, the Court finds that it does not alter the Court’s analysis of the CDA immunity issue in this case.