Section 230 Applies to Publicity Rights Claim–Hepp v. Facebook

June 6, 2020 · by · in Derivative Liability, Marketing, Publicity/Privacy Rights

Karen Hepp is a TV show host on the Fox 29 channel in Philadelphia. (No “Karen” jokes, please). She claims that “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.” With respect to defendants Facebook, Imgur, and Reddit, she claimed:

  • “[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.”

Hepp sued for publicity rights violations. The three defendants mentioned above moved for a 12(b)(6) dismissal on Section 230 grounds.

The court runs through the standard three elements for a Section 230 defense:

  • ICS Provider: “all three Defendants fall squarely within that definition as providers of a website or social media platform.”
  • Third Party Content: the court infers from the complaint that the plaintiff alleges that the “Defendants merely allowed the offending content to be posted on their respective platforms via third-party users.”
  • Publisher/Speaker Claims: The defendants are being sued for hosting the content.

In a footnote, the court acknowledges Trump’s anti-Section 230 Executive Order and its not-credible policy statements. The court gently replies: “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.” (I assume the context being that it was obviously political theater and an unserious attempt to characterize the law?)

The defendants thus satisfied the prima facie Section 230 defense. Still, what about the statutory exception for “IP” claims? Don’t the state publicity rights claims fit into that exception?

In the Ninth Circuit, the Perfect 10 v. ccBill court held in 2007 that state IP claims, which would include publicity rights claims, are covered by Section 230. A number of cases within the Ninth Circuit have followed that ruling, but most courts outside of the Ninth Circuit have disagreed. I’m aware of only one case outside of the Ninth Circuit, Parker v. Paypal, that has applied Section 230 to publicity rights claims. Like this case, that ruling was also in the Eastern District of Pennsylvania. This court agrees (per ccBill) that state IP claims, including publicity rights claims, are preempted by Section 230. The court explains:

This Court is persuaded by the reasoning in Perfect 10. State laws that could arguably be construed as implicating “intellectual property” vary and are not uniform in their purposes and policy goals. Conditioning CDA immunity on the diverse potentially applicable state laws would have a negative effect on the development of the internet, and, therefore, would run contrary to the purpose and intent of the CDA….In this Court’s view, construing § 230(e)(2) as preserving only federal intellectual property claims is most fitting because this interpretation simultaneously maintains broad immunity in line with the CDA’s stated congressional purpose. This preserves the scope of immunity within a predictable body of federal law as opposed to the diverse state law on the subject matter.

A full-throated adoption of the ccBill ruling! This sets up the possibility that courts outside the Ninth Circuit might reconsider that line of thinking. Then again, we probably need to see if this ruling can survive an appeal.

Case citation: Hepp v. Facebook, Inc., 2020 WL 3034815 (E.D. Pa. June 5, 2020). The complaint.

UPDATE: Hepp v. Facebook, Inc., 2020 WL 4437036 (E.D. Pa. Aug. 3, 2020):

Plaintiff seeks to amend her Amended Complaint to “add a count for successor liability and to add NKL as a party[.]” As noted above, the Court previously dismissed Plaintiff’s claims against Facebook, Imgur, and Reddit based on immunity under CDA § 230(c). A review of the pleadings and exhibits attached thereto reflects that NKL would likewise be entitled to immunity for the claims asserted in this action based on its ownership and operation of XNXX.com. Plaintiff describes XNXX.com as an “interactive platform by which Pennsylvanians upload and download millions of pornographic images and videos.” Interactive websites and social media platforms are entitled to immunity under § 230(c) for content provided by third parties. Review of Plaintiff’s Amended Complaint and Exhibit P reflects that Plaintiff’s photograph was posted on XNXX.com by an individual, or individuals, under the screen name(s) “endzeitH – NylonLuver – DebbyLynn – Ginger Snap – easytiger511111.” Immunity under § 230(c) applies when a third-party places content on an interactive website or social media platform. Because NKL is entitled to immunity under CDA § 230(c), further amendment of Plaintiff’s pleadings would be futile.

Selected prior blog posts on Section 230 and Publicity Rights (some of these were cited by the others, others weren’t):