For the last few years, Section 230 of the Communications Decency Act has saved social media sites like Facebook and YouTube from facing most legal claims over user content. On Thursday, however, a TV journalist in Philadelphia scored a significant legal victory that will allow her to blow past Section 230 and take on Facebook in a lawsuit over the misappropriation of her right of publicity.
As described in this earlier story, Karen Hepp, co-anchor of Fox’s Good Day Philadelphia, was disgusted to find that someone had sold hidden security camera footage of her. Her image was being used to advertise an erectile dysfunction cure, online dating apps and more. She sued some of the websites that were hosting illicit images, including Facebook and Reddit. But the case was dismissed by a district judge because of the Section 230 immunities enjoyed by tech companies.
The 3rd Circuit Court of Appeals has now reversed that conclusion that Section 230 applies here in a decision that not only revives her suit against Facebook, but potentially teases even higher-stake showdowns.
While Section 230 shields internet service providers from most legal claims over user content, an exception is made over intellectual property. But what does that include? All intellectual property or just IP under federal law like patents and copyrights? And, is a famous face a form of IP recognized by states like Pennsylvania? Those were the questions being handled at the 3rd Circuit in a case that drew the attention of the Screen Actors Guild.
“In our view, Facebook’s interpretation strays too far,” writes 3rd Circuit judge Thomas Hardiman in the latest opinion (read here). “We disagree that ‘any law pertaining to intellectual property’ should be read to mean ‘any federal law pertaining to intellectual property.’”
Meaning there’s no immunity in cases involving state intellectual property law.
And here, the 3rd circuit sees famous faces, names, voices, etc. as state IP.
Facebook argued that one’s right of publicity was a species of privacy law, but the 3rd Circuit says the closest analog is trademarks, adding also, “In Zacchini, the Supreme Court explained the right of publicity is an individual property right that is “closely analogous to . . . patent and copyright” because it focuses ‘on the right of the individual to reap the reward of his endeavors and [has] little to do with protecting feelings or reputation.’”
So Hepp gets to revive her case against Facebook. That is, unless the social media giant is successful in reversing the reversal before a fuller panel of 3rd Circuit judges or at the Supreme Court. And Facebook may indeed have a shot at the latter given a new circuit split as a result of this latest decision. After all, back in 2007, in a case over images of models, the 9th Circuit Court of Appeals concluded that Congress had only carved out federal intellectual property laws — not state laws like right of publicity.
Facebook will very likely pursue its appellate options because as its lawyer said at a hearing in the Hepp case, “Congress doesn’t put elephants in mouseholes, and this would be an elephant of allowing analogous torts in through the intellectual property section.”
In the decision, Hardiman attempts — convincingly or not — to downplay the ramifications.
“We close by emphasizing the narrowness of our holding,” he writes. “First, it does not threaten free speech…Second, our holding does not open the floodgates. Pennsylvania’s statute is limited. For instance, it provides a right of publicity cause of action only for those whose valuable interest in their likeness ‘is developed through the investment of time, effort, and money.’”
Third Circuit judge Roger Cohen dissents in part.
“[T]his decision… does threaten to open the floodgates,” he writes. Internet service providers now face the prospect that so troubled the Ninth Circuit—’Because 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.’… Such uncertainty as well as the probability of additional litigation in the future together with the real possibility of being held liable under disparate and often very expansive state law ‘intellectual property’ regimes would encourage internet service providers to censor more content…”