Earlier this month, the Eastern District of Pennsylvania confirmed social media platforms’ immunity under the Communications Decency Act (CDA) for right of publicity violations by users and members of the platforms. Several years ago, Karen Hepp, a newscaster for Fox 29 Philadelphia and co-host of Good Morning Philadelphia, discovered that her image, via a photograph unknowingly taken of her by a security camera in a New York City convenience store, was being used in conjunction with online advertisements for dating websites posted on Facebook. Additionally, the photo had been posted to Imgur and Reddit in several sexually explicit contexts. Not only did she never consent to having her image used for such purposes, she also was allegedly unaware that the photo had been taken in the first place.
In her complaint, Hepp alleged that the unauthorized dissemination of her image has impacted her “image/brand on social media sites” and has caused serious, permanent and irreparable harm to her reputation, brand and image. In a civil suit filed against the social media platforms, Hepp v. Facebook, Inc., No. 19-4034-JMY, 2020 U.S. Dist. LEXIS 98857 (E.D. Pa. June 5, 2020), Hepp alleged that the Defendant platforms violated her common law and statutory right of publicity; importantly, Hepp’s complaint did not allege that the Defendants created, authored, or directly published the subject content.
The social media Defendants moved to dismiss Hepp’s claims as barred by § 230(c) of the CDA, which creates a safe harbor that protects “interactive computer service” providers from liability for claims targeted at the dissemination of third-party content. In order for a defendant to meet the criteria for immunity under the CDA: (1) the defendant must be a provider or user of an “interactive computer service”; (2) the asserted claims must treat the defendant as the publisher or speaker of the information; and (3) the information must be provided by another “information content provider.” Hepp did not dispute that Facebook, Imgur and Reddit were all providers of “interactive computer services” as all are considered social media platforms. Further, based on Hepp’s amended complaint (which failed to allege that the Defendants created, authored, or directly published the content at subject of the lawsuit), the court was able to infer that she sought to treat each Defendant as a “publisher or speaker” of third-party content published on their platforms. Because Hepp’s claims were premised on content posted by a third-party that that were merely hosted on each of Defendants’ respective “internet computer service” platforms, the court held that her claims were not actionable under § 230 because the Defendants met the criteria for immunity under § 230(c).
Hepp, however, maintained that her claim fell within the exception to the CDA safe harbor set forth in § 230(e)(2), which states that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Addressing an issue of first impression within the Third Circuit, the District Court acknowledged a disagreement between the Ninth Circuit and several district courts over whether the CDA preempts state law intellectual property claims; pointing to the Ninth Circuit’s decision in Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), which held that the CDA preempts state-law right of publicity claims, and the U.S. District Court for the Southern District of New York’s decision in Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009), which held it does not.
Ultimately, the court was persuaded by the reasoning set forth by the Ninth Circuit in Perfect 10: “[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.” The court further noted Congress’s “expressed goal of insulating the development of the Internet from the various state-law regimes.” Accordingly, the court held that Hepp’s claims did not fall within the safe harbor exception in § 230(e)(2); only federal intellectual property claims are excluded from the scope of CDA immunity. For this reason, Hepp’s statutory and common law right of publicity claims were barred by § 230(c) of the CDA, and the case was dismissed.
In enacting the CDA, Congress stressed that “[t]he Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” § 230(a)(3). CDA immunity was implemented in order to “preserve the vibrant and competitive free market that exists for the Internet and other interactive computer services” by limiting Federal and State regulation. § 230(b)(2). It is obvious that courts, in perpetuating Congress’ intent, want to shield social media platforms from liability stemming from the actions of their individual users in order to leave the Internet largely unfettered by regulation. The Internet, however, has changed drastically since 1996 when the CDA was enacted. Content, whether it be beneficial or detrimental, is no longer exclusively created by administrators of websites; anyone can create and promulgate content on social media platforms. Do social media platforms which promote individual user content creation deserve CDA immunity in order to “preserve the competitive free market” that is the Internet? Oftentimes, the only redress a harmed plaintiff (i.e. Hepp) has is filing suit against one of said platforms since the individuals who post the damaging content are difficult and expensive to track down, may be located anywhere in the world, and may not have the financial resources to make the plaintiff whole. For now, the CDA remains a powerful shield to protect social media platforms from facing liability if they were not responsible for creating, authoring, or directly publishing the content at issue.