Intellectual Property Exception to “Section 230” Should be Narrowly Interpreted

Last week, a federal trial court in New Hampshire held that a website that enables singles and “swingers” to find sexual partners may be sued by a woman who was the subject of a fake profile created by an unknown imposter. The New Hampshire District Court in Jane Doe v. Friendfinder Network (No. 07-CV-286) ruled that Section 230 of the Communications Decency Act (47 U.S.C. § 230), which generally protects website operators from being held responsible for illegal content posted by others, doesn’t bar Doe’s claim against AdultFriendFinder.com for violating her “right of publicity” under New Hampshire law. While I have sympathy for the woman – I certainly wouldn’t want a fake profile of me on such a site – CDT is concerned with the legal precedent that might be created in this case. If Section 230 doesn’t bar state right-of-publicity claims against Internet intermediaries, popular user-generated-content sites – like YouTube.com where thousands of videos are posted each day, undoubtedly without the consent of many of the people in the videos – could soon face a wave of costly lawsuits.

As explained in an earlier blog post , the main provision of Section 230 aims to protect online service providers and other Internet intermediaries (such as websites like AdultFriendFinder.com) from a broad range of civil claims based on allegedly illegal content posted by third parties. Last week, a federal trial court in New Hampshire held that a website that enables singles and “swingers” to find sexual partners may be sued by a woman who was the subject of a fake profile created by an unknown imposter. The New Hampshire District Court in Jane Doe v. Friendfinder Network (No. 07-CV-286) ruled that Section 230 of the Communications Decency Act (47 U.S.C. § 230), which generally protects website operators from being held responsible for illegal content posted by others, doesn’t bar Doe’s claim against AdultFriendFinder.com for violating her “right of publicity” under New Hampshire law.

While I have sympathy for the woman – I certainly wouldn’t want a fake profile of me on such a site – CDT is concerned with the legal precedent that might be created in this case. If Section 230 doesn’t bar state right-of-publicity claims against Internet intermediaries, popular user-generated-content sites – like YouTube.com where thousands of videos are posted each day, undoubtedly without the consent of many of the people in the videos – could soon face a wave of costly lawsuits. As explained in an earlier blog post , the main provision of Section 230 aims to protect online service providers and other Internet intermediaries (such as websites like AdultFriendFinder.com) from a broad range of civil claims based on allegedly illegal content posted by third parties. By providing this kind of broad immunity from civil liability to websites whose users create the content at issue, Congress intended to construct a legal environment that stimulates innovation on the Internet and thus online free speech.

Section 230 does include exceptions. For example, Section 230 immunity doesn’t apply to “any law pertaining to intellectual property.” Congress didn’t distinguish between federal and state law in this part of Section 230 as it did in other parts, and instead referred to “any” IP law. Thus a strong argument can be made that Section 230 doesn’t bar claims based on state intellectual property laws (although some courts have concluded otherwise). The key question before the New Hampshire court was whether Jane Doe’s state law right-of-publicity claim against AdultFriendFinder.com is an “intellectual property” claim (and so is not barred by Section 230). Because the trial court answered “yes,” this decision could lead to a worrisome wave of suits against online service providers. In holding that Jane Doe’s right-of-publicity claim against AdultFriendFinder.com is an “intellectual property” claim (and thus not barred by Section 230), the New Hampshire court cited a federal appeals court opinion (Almeida v. Amazon.com, 11th Cir. 2006), which asserted that “there appears to be no dispute that the right of publicity is a type of intellectual property right.” The right of publicity is often considered a privacy right, but some cases place it into the intellectual property bucket. The right of publicity, defined by Black’s Law Dictionary, is “the right to control the use of one’s own name, picture, or likeness and to prevent another from using it for commercial benefit without one’s consent.”

Even if the right of publicity can arguably be considered an intellectual property right, CDT believes that the more important question is whether Congress intended to leave Internet intermediaries vulnerable to a wide range of so-called state “intellectual property” claims; or if Congress assumed that the scope of Section 230’s intellectual property exception was limited to the “big three” rights that form the core of federal IP law: copyright, trademark and patent rights. We believe it’s the latter and that the intellectual property exception to Section 230 should be narrowly interpreted. Indeed, even the New Hampshire judge earlier in the Friendfinder opinion, seemingly contradicting himself, declared that interpreting Section 230’s intellectual property exception as also including state intellectual property claims is not problematic because – the judge asserted – the scope of state intellectual property claims closely tracks that of federal law. Section 230 itself is indicative of congressional intent. Congress acknowledged that “the Internet . . . offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” Congress therefore declared that it’s the policy of the U.S. “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” If the right of publicity is considered an “intellectual property” right negating Section 230 immunity, an innumerable number of websites could be open to a whole new swath of liability for content they didn’t create. This would hardly help to preserve the “vibrant” culture of free speech and innovation that currently exists on the Internet. Creative plaintiffs attorneys would find a way of masking otherwise barred state tort claims – such as defamation and emotional distress – as intellectual property claims to get around Section 230 immunity. I

ndeed, the New Hampshire judge emphasized that Jane Doe suffered great embarrassment and anxiety due to the fake profile. The focus wasn’t on lost income because AdultFriendFinder.com used her persona for its own financial benefit – which is a key consideration under the right of publicity. We hope that if this case is appealed, the First Circuit will closely consider whether the right of publicity is appropriately characterized as a “intellectual property” right that is unaffected by Section 230’s immunity. If the appellate court follows the district court’s lead and broadens the scope of Section 230’s intellectual property exception, the abundance of user-generated content currently online and the immense value that Internet intermediaries provide could be put in jeopardy.