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

and other state (but not federal) intellectual property claims brought over platforms' hosting of third-party content.

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.

Comments

[Stephen Lathrop]

So much for defamation law. So much for intellectual property law. So much for federalism. So much for America's legacy publishing industry. So much for abundance and diversity among publishers.

All hail publishing monopoly. And let's get going to figure out how to fine tune monopoly publishing with government censorship!

Great law that Section 230! I'm sure Congress thought all that through before they passed it.

[borky]

So much for actually understanding the law or its consequences, evidently.

[Aktenberg78]

Defamation law and IP law still apply. They just have to sue the people who created the ad. Not Facebook.

[Stephen Lathrop]

Aktenberg78, no. Previous state defamation law no longer applies. It says so explicitly in Section 230. Look it up.

Your argument is specious: "They just have to sue the people who created the ad. Not Facebook."

For one thing, it isn't an ad until it is published. So really, as always, it is the publisher who creates the ad, by publishing it.

More to the point, before Section 230, the customary standard was to hold publishers liable along with contributors. That was not incidental to defamation law. It was the entire practical basis for defamation law. Everyone who understood publishing (never a large group) understood that without that, the law would be useless. Take that part out and you gut the law. Too bad nobody in Congress knew that, or at least gave it any thought.

You may not be familiar with publishing, but you can judge for yourself anyway. Look around. It really is not possible to observe today's internet and argue the contrary. Defamation law has been gutted.

The problem the creators of Section 230 thought they were solving is also the reason so few people understand now what happened: most folks have no notion what defamation is. No one thought you could make Joe Keyboard understand it, but almost everyone wanted to make Joe Keyboard an author anyway. He who would be an author of a kind never before seen—one who could achieve publication world-wide, on demand, at no cost—and still just be Joe Keyboard, as innocent as ever of anything that newly exalted status might require for responsible exercise. What a democratizing dream that was!

So Congress tried to work around Joe Keyboard's ignorance, and inadvertent irresponsibility, without ever considering all the things that might happen as a result. As it turned out, those unanticipated results included: a bizarre flood of published private spite; scams everywhere; weaponized-speech attacks on children (and lots of adults too); election frauds; full-time defamation of public figures*; the collapse of localized and diverse news publishing; the rise of monopoly publishing; dependence of would-be authors on an ever-diminishing set of private publishers; and lately, a flood of public agitation for government censorship of private publishers, to offset fears they have grown too powerful, which in the absence of the formerly profuse competition they killed off, they have.

That was a consequential legal change. It is time to reconsider it.

*Instead of just in the months preceding elections, as previously. That difference is not trivial, it is the basis for the oft-lamented increase in full-time extreme partisanship and "divided America."

[nonzenze]

Everyone who understood publishing (never a large group)

You're damning yourself with faint praise. The fact that you lament publishing was previously restricted to a small group of insiders and is now accessible to the masses is just bait.

Or more to the point, who do you hope to convince with this line of argument? That small group of folks who previously had agreed amongst themselves to enforce this elusive "understanding" that excluded most of everyone else? We know what they think. Why should anyone else by moved by an argument about returning to that exclusionary 'understanding'?

Literally, what is in it for your argument for anyone that's not in traditional publishing? What do they stand to gain?

[Stephen Lathrop]

nonzense, no one was enforcing any understanding to exclude anyone. There just weren't that many people with first-hand experience of how publishing works—and now there are less.

A lot of businesses, in retail or service industries, for instance, work in ways similar to other businesses. A steak house, and a fast food joint, and a donut shop are not the same, but someone with experience managing one would not be starting from scratch if moved to another. Take that same person and put him in charge of a newspaper, and there just isn't any foundation or point of connection.

Publishing is more sui generis. So it's just a fact that relatively few people understand publishing; it's not a cult of insiders, let alone a conspiracy.

Unfortunately, publishing will be even less understood presently, after even more erstwhile publishing businesses have been driven out by internet monopolists. Which points to some things, "anyone," would stand to gain if that trend were reversed. Readers would once again enjoy a diversity of news sources to choose from, with far more local news gathered and published. Writers could access publications with differing editorial points of view, to accept and publish their work, and even pay them for it. The public at large would not be frightened that publishing monopolists might clamp down to exclude specific privately disfavored points of view. Calls for government censorship of the private press would go away.

Also, "anyone," doesn't have to be, "in," traditional publishing to benefit from some of its unique capacities. Investigative journalism, for instance, is, and is destined to remain, an almost exclusive province of the institutional press. No matter how good a reporter, writer, or investigator he may be, lone-wolf Joe Keyboard will not likely succeed doing stories based on publishing insider information. That is true even if Joe was previously a renowned investigative journalist, with a long history of success at a prestigious publication.

The problem for freelancers is that inside sources, and especially highly-placed government sources, take chances when they disclose to journalists. In return, they want assurance that any information they disclose will be published to an extensive, preexisting audience, under the auspices of a publication with a long-standing reputation for accuracy, independence, and political clout. Sources also want the de facto legal protection which the best-established publishing institutions can deliver, and which freelance publishing cannot.

All of that comes from the part of the reckoning which most people think of when they think about publishing—the content part. Relatively few people outside professional publishing even notice that published content is not the product. Content may be the point of the enterprise, but it is not what the publisher sells to sustain the business and make a profit. Instead, content is the means which the publisher uses to assemble an audience. Access to that audience is the product the publisher sells. That is what brings in the bucks, sustains the enterprise, and delivers the profit. That access is sold to advertisers. Advertisers, not news and information consumers, are the typical publishers' customers.

That fact, which content-focused internet commentary tends to ignore, is critically important for understanding what is happening now in America's publishing business—and especially for understanding the role Section 230 has played in the near demolition of the publishing industry. Long story short, Section 230 enabled a new publishing business model—publishing everything without reading anything—which for the first time enabled the sale of unlimited advertising, and doing it without commensurate increases in content costs.

Section 230 thus began a trend toward monopolization of advertising sales by a tiny number of internet businesses, while depriving traditional publishers of their customers. Remember, "customers," does not mean content users. This has not been a battle between rival means of content delivery, in which new technology has proved superior, delivered better content, and justly triumphed. All of that is sideshow.

Plus which, the content actually generated by online enterprises has mostly been worse, not better. If internet news consumers had to depend for their knowledge only on content actually generated by internet publishers—instead of pirated from the remnants of the institutional press—then internet news consumers would know little indeed. And that is where they and the nation are now headed.

The entire online triumph has instead been on the side of advertising sales monopolists, who got to exploit a law tailored to their advantage. The loss of a previously-thriving commercial ecology of thousands of news gathering and advertising selling businesses is a price that your, "anyone," now pays for that. The nation's frighteningly virulent partisan divide is another price. Demands from the President to censor the private press—and from thousands of citizens as well—are another price. Not paying prices like those is what, "anyone," stands to gain.

[borky]

I replied with snark to your initial comment, which I perceived as unreasoned assertions without any supporting argument. Having read these more substantive responses, I'd like to thank you for them. I don't think I agree with you, but it's a thought provoking analysis, and was a pleasurable read. Thanks.

[Stephen Lathrop]

borky, without people like you I could probably get off this blog, and find a more constructive use for my time. But every so often, at long intervals, to get a handsome reply like yours keeps me coming back. Thank you for that.

[nonzenze]

nonzense, no one was enforcing any understanding to exclude anyone. There just weren’t that many people with first-hand experience of how publishing works—and now there are less.

If no one was excluded, why was it such a small group? We've seen clearly that there is a huge desire for people to publish. It doesn't seem possible to maintain only a tiny group without excluding folks.

Publishing is more sui generis. So it’s just a fact that relatively few people understand publishing; it’s not a cult of insiders, let alone a conspiracy.

So you're saying that the high school kid with a million followers would have been totally welcome to walk into a traditional media. I'm skeptical. Prior to YouTube, that kid had zero voice, would have been laughed out of the newsroom for not having a degree. It's hard to say they were not functionally excluded from publishing.

Access to that audience is the product the publisher sells. That is what brings in the bucks, sustains the enterprise, and delivers the profit. That access is sold to advertisers. Advertisers, not news and information consumers, are the typical publishers’ customers.

And why would advertisers want to buy an entire audience instead of the fine-grained audience targeting? That's a strictly inferior product from the advertiser's point of view.

Section 230 thus began a trend toward monopolization of advertising sales by a tiny number of internet businesses, while depriving traditional publishers of their customers.

This is monopoly in the same was that Henry Ford's Model T was a monopoly with respect to the horse and buggy world -- it's a far more technologically advanced way to deliver ads.

Every industry that is replaced makes a last ditch effort to convince us that their business model is still relevant even in the fact of the alternatives. It's horseshit.

Plus which, the content actually generated by online enterprises has mostly been worse, not better.

This must be satire. The wealth of choice is worse than the good-ole-boys network? There are any number of niche markets that weren't being met at all because traditional publishing wasn't efficient enough to deliver them profitably.

[Stephen Lathrop]

nonzenze, in the context of a discussion of the effects of Section 230, claims that online advertising monopolists have invented a more efficient way to deliver advertising fall apart. All you have to do is suggest repeal of Section 230. You will be met by howls in opposition. Online fans are certain that requiring competition in the absence of special legal protections for online monopolists would destroy the monopolists—a result which for some reason online enthusiasts regard as a bad thing. That's pretty damning. It all but proves giant online publishers have not discovered some new miraculously efficient business model.

It especially means the celebrated micro-targeting is not inherently more efficient. Apparently, the micro-targeting business model can't even get over the previously-customary bar of assembling an audience without defaming people. Legacy publishing cleared that bar with ease.

Nor is it likely that micro-targeting would look attractive as a business model in the absence of legally-supported monopolism. Among a nation-wide monopoly-audience there are plenty of micro-targets. They may be pretty thin on the ground among diverse local audiences.

Noticing that suggests an insight—that legacy publishing delivered one important value to advertisers which micro-targeting mostly does not—assembling a general audience introduces into the ad-sales mix the recruitment of previously undiscovered audience interest. Micro-targeting counts that customarily-important ad-sales value as too expensive to bother with—as it may in fact be for a nation-wide monopolist.

Yes, micro-targeting looks effective—if you can wrap up the entire national publishing audience in one package, exclude competitors by law, covertly surveil audience members to discover (and sell) indispensable targeting information, bombard different audience members with diametrically opposite assertions of what facts are, and goad extended audience participation with maximally divisive and defamatory content. Not to mention actually-destructive fanciful content, like unfounded conspiracy theories, and anti-scientific advocacy against public health. Those too add micro-target-able consumers to the mix, while raising a question: to what extent ought public costs be counted in the reckoning of "efficiency?"

When you publish without reading, under special legal protection, to a monopolized audience, all that matters is how long you can hold on to each audience member's attention. That is the entire, values-free business model of the system you suppose to be a newly efficient force of free market nature. On the basis of experience thus far, the nation must conclude that replacing the news gathering function of legacy journalism has been no part of that model.

The prior system, the contrary system, the system of reading everything before publishing, was inherently values-based. Better yet, it was values-based without being dependent on any particular values system—such as elevating free-market principles over everything else, while inviting government censors in to referee disputes among competing systems of opinion.

Instead, the former system encouraged competition among values, profusion of opinions, and diversity of outlets. Just as it stood, the former system was the better system. It is not a close comparison.

Now, thanks to the invention of online publishing, the former system could be re-instated, but in improved form. The point would be to broaden the publishing base by taking advantage of the dramatic cost advantage which is online publishing's one actual inherent advantage.

That broadening would have to stop short of universal access, as now advocated for internet publishing. There still must be a requirement that large publishers read everything before publishing. But publishing opportunities could be far broader than before, when high costs for paper, ink, and distribution imposed stringent limits on how much publishing a commercial advertising base could support. With online methods, those limits become much broader. Publishing opportunities could expand proportionately.

One key to enabling such an expansion, while avoiding the negatives created by Section 230, might be to specially privilege and protect against defamation judgments not the large publishers, but the individual practitioners. Let Joe Keyboard stay ignorant, and gossip online to his heart's content, but not on someone else's publishing platform. Thus limited, Joe will not usually do much damage. Joe must assemble his own audience, however broad or narrow. Joe still gets to publish worldwide, at trivial cost. Compared to legacy publishing, online opportunities have thus enormously empowered Joe.

If Joe's offerings can attract an audience advertisers value, let Joe sell advertising. The advertisers will mostly become the practical sources of Joe's constraint, just as they so often were with legacy publishing. While protected within a newly-created legal category of a self-publishing individual, don't require Joe to learn too much, or hold him to any high legal standard with regard to defamation. Joe's burdens should be no more challenging to master than the lightly-administered requirements which government now applies to private operators of low-powered broadcasting equipment, such as marine band radio.

Once Joe has learned the ropes—if he wants broader reach and more influence, and especially if wants to accept contributions from other authors—he must learn what editing is. At that point, Joe must learn to avoid defamation, by being held legally responsible for it. All the other virtues of a publishing system based on reading before publishing will follow from that.

[Mike Hansberry]

Are there any fixes that you have in mind aside from just going back to the old way?

I agree that defamation is out of control. The usual remedy for false speech (more speech) doesn't work in cases of defamation. Imagine the absurdity of a supposedly civilized society telling the defamed TV newscaster that she and her supporters are free to post as often as they like that she is not a MILF (MYLF?) and does not approve the use of her image, but have no other legal recourse.

[nonzenze]

Is writing an opinion (obviously no court would consider "MILF" to be a statement of objective fact) even plausibly defamatory?

I mean, it's gross, but it's not illegal.

[Noscitur a sociis]

Too bad nobody in Congress knew that, or at least gave it any thought.

Congress understood that § 230 was altering the traditional rule. That is precisely why they enacted it. And that enactment, in turn, allowed the creation of the modern internet. That development hasn't been entirely without negative externalities (your stupid posts, Dr. Ed, and so on), but on the whole it's one to be celebrated.

[Grifhunter]

This article is worthless without the pics.

[Abdul Abulbul Amir]

Sigh.

[santamonica811]

heh

[Shamie Ervin iv]

Just look for Philadelphia Fox-29 anchors. She's there and a beautiful face.

She is married and has children. I don't blame her for suing.

230 needs amending. Especially once a publisher is put on notice, the offending libel ought to be removed immediately.

Remember Chris Tolles? Whenever Topix received a request to take down libelous or abusive material, he'd make you send him some folding money first. Chris the grifter. Chris the scoundrel. Chris the psychopath.

[MatthewSlyfield]

"Especially once a publisher is put on notice, the offending libel ought to be removed immediately."

1. The website is not the publisher, the user who posted the information is.

2. Why should a mere allegation of libel be considered sufficient notice.

Get a court decision on the merits that it is in fact libel then come back .

[santamonica811]

I think it says something about me that, when I read this, my first reaction was to look at Trump's Ex. Order, and wonder, "...hand pick..."??? Not handpick or hand-pick???

Off to Google ngrams, which does show that all three are perfectly acceptable.

https://books.google.com/ngrams/graph?content=handpick%2C+hand-pick%2C+hand+pick&year_start=1800&year_end=2008&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Chandpick%3B%2Cc0%3B.t1%3B%2Chand%20-%20pick%3B%2Cc0%3B.t1%3B%2Chand%20pick%3B%2Cc0#t1%3B%2Chandpick%3B%2Cc0%3B.t1%3B%2Chand%20-%20pick%3B%2Cc0%3B.t1%3B%2Chand%20pick%3B%2Cc0

[Paul Alan Levy]

A narrower approach would have been to decide that the meaning of the term "law pertaining to intellectual property" is defined by federal law and not state law, and whether or not a state decides that the right of publicity is an intellectual property right, the right is not intellectual property but rather a species of tort law.

[Eugene Volokh]

Paul: Interesting point -- I wonder whether this might indeed be the approach that the judge took. He interpreted the term "intellectual property law" in the statute as a matter of federal law, and concluded that it didn't include right of publicity law. Or am I misunderstanding your analysis?