Nathan Vanderhorst | Why Is Zuckerberg Using My Image In Dating Apps?: Looking to Section 230 for Guidance

BACKGROUND 

The Communications Decency Act (CDA) was passed into law in 1996 to address the proliferation of indecent material on the nascent internet industry. To promote growth, Congress also made sure to offer Internet companies protection from particular kinds of content liability. This protection came in Section 230 of the CDA, which broadly immunized content providers from lawsuits over content generated by third parties. For example, an Internet chat board could not be sued over the comments of its users. However, there are several exceptions from Section 230 immunity, such as for intellectual property claims and state law claims (47 U.S.C. 230(e)(2) and (3)).

Karen Hepp is a news anchor for Fox 29 in Philadelphia. In 2019, she filed a lawsuit in the Eastern District of Pennsylvania against Facebook after discovering that the company was advertising a dating website using her image. The claim pertinent here was a violation of Pennsylvania’s right of publicity law. Since Hepp was a public figure who depended on a carefully cultivated image for her success, she argued that her image on a dating website without her authorization jeopardized that image. The District Court dismissed her state law claims on the basis that Section 230 only exempted federal intellectual property claims from immunity.

ISSUE

Are state law claims for violation of a right to publicity immunized from lawsuits by Section 230 of the CDA?

THE SPLIT

Hepp’s case was appealed to the Third Circuit, but there was an existing circuit split between the First and Ninth Circuits.

The First Circuit

The First Circuit addressed the intellectual property exception in 230(e)(2) in the case of Universal Communications Systems, Inc. v. Lycos (1st Cir. 2007). In that case, Universal Communications Systems (UCS) and its CEO brought defamation claims against Lycos, the operator of an Internet message board that contained anonymous posts critical of UCS. The allegedly defamatory posts disparaged the “financial condition, business prospects and management integrity” of UCS.

Many of UCS’s claims were dismissed because of Section 230 immunity, but the court took care to address one claim in particular, which was that Lycos violated Florida state trademark law. UCS’s claim was that, in permitting the defamatory speech against UCS, Lycos was diluting the UCS brand. The District Court of Massachusetts had dismissed the claim, stating that the trademark claim was in fact, a defamation claim in disguise.

The First Circuit held that, while the district court properly dismissed the claim “because of the serious First Amendment issues that would be raised by allowing” the claim, Section 230 immunity did not apply. In other words, a well-pleaded state law trademark injury could in theory survive Section 230.

The Ninth Circuit

In the same year as the decision in Lycos, the Ninth Circuit had the opportunity to consider the applicability of intellectual property law to Section 230 in the case of Perfect 10, Inc. v. CCBill LLC (9th Cir. 2007). In that case, Perfect 10, an adult content Internet company, sued CCBill alleging that CCBill provided services to websites that posted images stolen from Perfect 10.

Among many federal intellectual property claims, Perfect 10 asserted a California state law claim against CCBill for violation of Perfect 10’s models’ right to publicity. The Ninth Circuit held that, because Congress gave no indication otherwise, Section 230 only exempted federal intellectual property claims from immunity, and that Perfect 10’s state law right to publicity claim was not viable.

“The CDA does not contain an express definition of “intellectual property,” and there are many types of claims in both state and federal law which may—or may not—be characterized as ‘intellectual property claims. While the scope of federal intellectual property law is relatively well-established, state laws protecting ‘intellectual property,’ however defined, are by no means uniform….In the absence of a definition from Congress, we construe the term “intellectual property” to mean “federal intellectual property.”

The Third Circuit

The Third Circuit, in Hepp v. Facebook (3rd Cir. 2021), joined the First Circuit in holding that Section 230 does not immunize Internet companies from state law intellectual property claims.

The court acknowledged the Ninth Circuit’s assertion that there was a lack of a definition of “intellectual property” in the CDA, but stated that the evidence “cuts both ways,” and one could just as easily argue that references elsewhere in the statute “suggest that when Congress wanted to cabin the interpretation of state law, it knew how to do so.” In the absence of clear statutory evidence, the court held that the “natural meaning” of intellectual property, which includes state law, holds.

The court also stated policy reasons for ruling in favor of Hepp, including the Congressional policy of enacting Section 230, which was to promote free markets. “State property laws,” the court  says, “enable the…formation of effective markets.” Additionally, Hepp’s right to publicity should be considered a valuable property right and preventing a public figure who “has dedicated considerable time, effort and money into building her brand” from being able to challenge unauthorized uses of her image would disincentivize people from cultivating valuable public images.

Ultimately, the Third Circuit allowed Hepp to move forward with her claim on the basis that Section 230 does not preclude claims based on state intellectual property laws.

LOOKING FOWARD 

Facebook will likely pursue en banc review, which could go in either direction for the company given the split in the Third Circuit’s decision. Should the Third Circuit panel ruled again in favor of Hepp, Facebook may likely take the case further and seek review from the Supreme Court. Facebook, which displays massive sums of user-generated content, has much to lose if every individual state can assert intellectual property claims against the company.

That being said, Section 230 remains controversial, and this case may to the law’s contentiousness in the eyes of the public and policymakers. People critical of the power of tech companies will celebrate this ruling, but Congress, responding to an electorate critical of big tech, may choose to amend Section 230 of the Third Circuit en banc panel or the Supreme Court eventually rule for Facebook.