With little comment and reportage, the U. S. Supreme Court decided on May 18 that the “safe harbor” granted to the operators of online platforms precluded claims that an algorithmic process that allowed terrorist recruiting messages to be briefly available on YouTube abetted a 2015 ISIS attack in Paris, which plaintiff claimed made Google liable for the death of a member of the plaintiff’s family. The Court found most claims in Gonzalez v. Google to be barred by Section 230 of the Communications Decency Act (CDA), and the remaining claims to be insufficiently supported by the federal anti-terrorism provisions under which they were brought.
The case marked the first time the Supreme Court was asked to review the controversial Section of the CDA, but the Court applied the Section 230 bar with little or no analysis. Most provisions of the CDA were declared unconstitutional in the 1997 case of Reno v. ACLU. The CDA was an effort to keep the web free of illegal, objectionable, and “indecent” content by, in part, giving internet service providers a safe harbor from liability for taking down or refusing to post third-party content. Although most of the CDA was never enforced because of the ACLU decision, Section 230 remains enforceable law, based on its internet application of the traditional rights of publishers to make editorial decisions without fear of legal repercussion.
The same year as ACLU, the Fourth Circuit held in Zeran v. America Online, Inc. that Section 230 protects internet service providers from state-law claims for publishing third-party postings, just as traditional print media publishers were free from liability for deciding to print or not print material such as reporting, advertising, and opinion. In Zeran, Section 230 protected AOL from liability for a state law claim arising from defamatory statements posted on its service by an anonymous subscriber.
A week after the Court’s recent Gonzalez decision, another case quietly settled with equally minimal fanfare. Philadelphia news anchor Karen Hepp announced on May 26 that she has settled her claim against Meta over Facebook’s publication of numerous ads featuring a misappropriated photograph of Hepp in violation of her right of publicity. Like defamation, the violation of one’s right of publicity is a state law claim, and Meta maintained that Section 230 shielded it from Hepp’s claim. However, Section 230 contains an express exception for intellectual property rights, and the Third Circuit held in early 2022 that Facebook is not exempted from responding to Hepp’s claim because the right of publicity is an intellectual property right under Pennsylvania law. The settlement of Hepp’s claim means that, at least for now, the Supreme Court will not be looking at Section 230 from a right of publicity perspective.
Earlier this year, the Southern District of New York held, in Ratermann v. Pierre Fabre USA Inc. (S.D.N.Y., 1/17/23) that Section 230 does bar a right of publicity claim against an internet service provider. In so holding, the SDNY court relied on the 2019 Second Circuit decision in Force v. Facebook, Inc., which, though not a right of publicity case, found that Section 230 protects Facebook against state law claims arising from postings by Facebook users. The intellectual property exemption was not an express issue in that case, though it hovered in the background enough to guide the Ratermann court’s holding.
The different results between the Second and Third Circuits have been widely misreported as a “Circuit split.” In fact, both Hepp and Ratermann were correctly decided by the respective courts. The disparity is due to the fact that Pennsylvania’s right of publicity statute expressly regards the right as an intellectual property right, whereas New York state’s right of publicity provision is part of the state’s privacy law and is a personal right, not a property right. As long as there is no federal right of publicity, and some states regard the right as a property right while others hold it to be a purely personal right, there can be no definitive determination as to whether a right of publicity claim against an internet platform is or is not barred by Section 230.
To further complicate the issue, there is a Circuit split as to whether Section 230’s exemption for intellectual property claims refers specifically to federal intellectual property rights and is thus limited to copyright and patent claims (Perfect 10, Inc. v. CCBill, LLC., 9th Cir. 2007) or the Section 230 exemption is not so limited and does not bar claims based on state-law intellectual property rights (Hepp v. Meta, 3d Cir. 2022).
Sooner or later, the Supreme Court will be called upon to address this issue. But for now, Section 230 survives to fight another day.
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