In what appears to be the first case of its kind, a federal court in New Hampshire has ruled that the immunity provisions in section 230 of the Communications Decency Act (CDA 230) do not bar a state law claim for a violation of a person's "right of publicity." In so holding, the court expressly disagreed with the Ninth Circuit's decision in Perfect 10 v. CCBill LLC, which held that CDA 230 exempts only federal intellectual property law claims from its protections.
The case involves the typically disturbing facts that often arise in the CDA 230 context. The plaintiff, proceeding pseudonymously, sued defendant Friendfinder Network, which operates a number of websites, including “AdultFriendFinder.com” that bills itself as “the World’s Largest SEX and SWINGER Personal Community.” To participate, users register by entering a variety of personal information, creating online profiles that can be viewed by other members of the community.
In June 2005, a user created a profile with the name “petra03755” and stated that she was a separated 40-year old woman in New Hampshire who was seeking “Men or Women for Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship.” The profile also included biographical data, such as birth date, height, build, and hair and eye color, and a nude photograph.
The plaintiff alleges she had nothing to do with creating the profile and that the photograph does not depict her. Nevertheless, she claims that the biographical information and photo reasonably identified her as “petra03755” to people in her community. Her complaint raises eight claims: “Invasion of Property/Intellectual Property Rights”; Defamation; “Intentional/Negligent/Reckless Conduct”; “Dangerous Instrumentality/Product”; Intentional infliction of emotional distress; Violation of the New Hampshire Consumer Protection Act; False designations in violation of the Lanham Act; and “Willful and Wanton Conduct.”
In his order partially dismissing the case, Judge Joseph Laplante held that all of plaintiff's claims -- other than her right of publicity claim -- were barred by CDA 230. The fact that the judge dismissed seven of the plaintiff's eight claims isn't surprising, given CDA 230's broad scope. What is surprising, however, are the conclusions the judge reached in holding that CDA 230 does not bar her state law right of publicity claim.
First, Judge Laplante concluded that state law intellectual property claims are exempt from the scope of CDA 230’s immunity provisions, citing Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1324 (11th Cir. 2006) and Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001). In a rather lengthy discussion of the statutory language, the court reasoned that Congress could have expressly limited the IP exception to federal claims, but chose not to and therefore state law IP claims are also exempt from CDA 230's protections.
This conclusion -- that CDA 230 does not apply to state IP claims -- is in direct conflict with the Ninth Circuit's decision in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007). In Perfect 10, the court concluded that CDA 230 immunized state intellectual property claims, noting:
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. 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 state-law regimes.
Second, Judge Laplante concluded that the plaintiff's right of publicity claim was a state law intellectual property claim and thus exempt from CDA 230's coverage. Whether a right of publicity claim is actually an intellectual property claim or merely a privacy claim -- which would not be exempt from CDA 230's coverage -- is still an open question.
Courts first began to recognize a right of publicity claim after Samuel Warren and Louis Brandeis published an article in the Harvard Law Review in 1890 entitled "The Right to Privacy." In the article, Warren and Brandeis expressed concern over the increasingly sensationalist press that was "overstepping in every direction the obvious bounds of propriety and decency," and noted that various technological developments - particularly "instantaneous photography" - posed a grave threat to privacy. They argued that the law should recognize the "right to be let alone," at least with respect to matters that were outside the public interest. Many states now have adopted either by statute or common law the privacy torts Warren and Brandeis outlined.
The right of publicity varies widely from state to state, but as defined in the Restatement (Second) of Torts, it subjects to liability anyone "who appropriates to his own use or benefit the name or likeness of another." The first case to recognize such a claim involved the unauthorized use of a private plaintiff's name and picture in an advertisement for life insurance. In that case, the Georgia Supreme Court reasoned that "the body of a person cannot be put on exhibition . . . without his consent. The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty." Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905).
Judge Laplante didn't discuss the genesis of a right of publicity claim and spent little time examining whether the plaintiff's claim properly fit the description of "a law pertaining to intellectual property" that CDA 230 exempts from its coverage.
It will be interesting to see how future plaintiffs use this decision to craft creative legal claims that seek to get around CDA 230's immunity provisions.
