United States: Third Circuit Finds No Immunity Under Section 230 Against State Publicity Right Claims
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In a split from the Ninth Circuit, the Third Circuit recently reigned in Hepp vs. Facebook, Inc., that section 230 of the Communications Decency Act does not exclude the state’s right to advertising claims.
Hepp, a Fox 29 presenter in Philadelphia, sued a number of platforms and sites when an old image of her – apparently captured by a New York bodega security camera – appeared in advertisements for the sites. dating and other less tasty products. . After other defendants dismissed on jurisdictional grounds, this decision focused on Hepp’s advertising right against Facebook, which was running one of the dating site’s ads. (The ad encouraged viewers to “meet and chat with single women near you,” apparently including Hepp, so don’t believe everything you read on the internet.)
The district court allowed Facebook’s motion to dismiss, ruling that Hepp’s claim was prohibited by Section 230, which provides immunity for third-party content posted on sites like the platform. However, section 230 also includes an exception to this immunity for intellectual property claims. More specifically, Article 230 confirms that it will have “no effect on intellectual property” and “will be interpreted as limiting or extending any law relating to intellectual property”. Especially in Perfect 10, Inc. v. CCBill, LLC, the Ninth Circuit interpreted this exception as applying only to
federal intellectual property claims, citing that including the patchwork of state legal regimes in this exception “would run counter to the expressed objective of Congress of isolating Internet development from various state legal regimes.”
The Third Circuit panel reviewing the lower court’s decision in the Hepp case disagreed, as did other courts outside of the Ninth Circuit. In reversing the lower court’s decision, the Third Circuit considered the ordinary meaning of the text, which nowhere indicates that it is limited to federal law. He further noted that while Congress wanted to exclude the claim from state law, it knew how to do so explicitly, as was clear from other parts of Section 230. The court then recognized the claim. purpose of Section 230, which was to preserve a free market, but found that state property laws could also “facilitate trade”. Finally, the court dismissed concerns that different state laws could create confusion – which had been important to the Perfect 10 court – because neither Facebook nor the amici on its side provided any evidence of the impact of this patchwork of laws.
The Third Circuit then ruled that Hepp’s publicity right was an “intellectual property law”. To do this, the court examined various dictionary definitions of “intellectual property” and found that most of them explicitly or implicitly included the right of publicity. The Third Circuit thus overturned the lower court, allowing the case to move forward.
The obvious conclusion of this case is that is possible to look good in New York City bodega security footage (which has never been my personal experience), but the ruling also creates a potential split circuit on the IP exception in section 230. Given the recent interest in Section 230, this may be a split that the Supreme Court decides to take over.
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