The Law and Business of Social Media
February 27, 2023 - IP, Section 230 Safe Harbor


Section 230 of the Communications and Decency Act provides broad immunity to online platforms for claims arising from hosting third-party content (though just how broad is a hot issue that the Supreme Court may decide this term in Gonzalez v. Google LLC ). But Section 230(e) of the statute expressly excludes certain types of claims from the safe harbor, including “intellectual property” claims. Specifically, Section 230(e)(2) states “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”

However, even Section 230(e)(2)’s express statutory language has been a source of controversy, with some courts holding that it applies only to federal intellectual property claims, and others holding that it covers both federal and state claims. Just over a year ago, the Third Circuit in Hepp v. Facebook held that Section 230(e)(2) applies to both federal and state intellectual property claims, and that, accordingly, the Section 230 safe harbor did not bar a right of publicity claim under Pennsylvania law. The Ninth Circuit, on the other hand, held in Perfect 10, Inc. v. CCBill LLC that Section 230(e)(2) applies only to federal intellectual property claims. Therefore, according to the Ninth Circuit, state law claims are not excluded from the safe harbor, and Section 230 did bar the plaintiff’s publicity rights claim under California law.

Now we have a case from New York—Ratermann v. Pierre Fabre U.S., Inc.—that puts a new spin on the issue by holding that Section 230(e)(2)’s intellectual property exception does not apply to a New York statutory right of publicity claim because such a claim is not an intellectual property claim at all. In Ratermann Judge Furman of the Southern District of New York held, as a matter of first impression, that publicity rights and privacy claims under Sections 50 and 51 of the New York Civil Rights Law are not “intellectual property” claims and are, therefore, barred by Section 230 immunity.

Plaintiff Patty Ratermann, a fashion model, signed a single-use license with defendant QuickFrame, giving QuickFrame the right to use her likeness on Instagram. Ratermann alleged that she later discovered her likeness being used to advertise defendant Pierre Fabre’s Avène products, without her knowledge or consent, on the Avène website, on the websites of defendants Amazon, Walmart, and Ulta, and in the stores of defendant Walgreens. Ratermann sued all the defendants, alleging, among other things, that they violated her right to privacy and/or publicity under Sections 50 and 51 of the New York Civil Rights Law.

Amazon, Walmart, and Ulta moved to dismiss Ratermann’s suit under Section 230(c)(1), which provides that “no provider or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A defendant is shielded from liability under Section 230 if the defendant can prove that: (1) it “is a provider . . . of an interactive computer service[;] (2) the claim is based upon information provided by another information content provider[;] and (3) the claim would treat the defendant as the publisher or speaker of that information.”

Judge Furman concluded that all three elements of Section 230 were satisfied, but the analysis did not end there. As noted above, Section 230 includes certain exceptions, one of which is for “intellectual property” claims. Judge Furman held that Ratermann’s privacy/publicity claims under New York law did not fall within the intellectual property exception.

Judge Furman reviewed New York state case law and concluded that “New York courts have long construed Sections 50 and 51 to provide a statutory right to privacy, not property” and that “the ‘right of publicity’ is encompassed under the Civil Rights Law as an aspect of the right of privacy.” Relying on New York state court’s decision in Gautier v. Pro-Football, Inc., Judge Furman found that Sections 50 and 51 “created a limited right of privacy” and “provided primarily a recovery for injury to the person, not to his property or business.” Thus, he held that Amazon, Walmart, and Ulta were entitled to immunity under Section 230.

As noted above, courts considering the application of Section 230 to similar laws in other states have come to different conclusions. For example, in Hepp, the plaintiff Karen Hepp, a news anchor, found that an image of her, taken without her knowledge or consent, was posted in advertisements on Facebook and other social media platforms. Hepp brought claims against Facebook and other social media companies for violation of her statutory right of publicity under Pennsylvania law. The Third Circuit held that the “ordinary legal meaning” of the term “intellectual property” includes the right of publicity. Therefore, Hepp’s claim fell within the Section 230(e)(2) exception and was not barred by Section 230. Both the Hepp court and the Raterman court cited Zacchini v. Scripps-Howard Broadcasting Co., a 1977 U.S. Supreme Court case, as support for their divergent conclusions.

In Hepp, the Third Circuit cited Zacchini for the proposition that “the right of publicity is an individual property right that is ‘closely analogous to . . . patent and copyright’ because it focuses ‘on the right of the individual to reap the reward of his endeavors and [has] little to do with protecting feelings or reputation.’” Relying on Zacchini and a New Jersey case holding that the unauthorized use of Thomas Edison’s picture constituted an endorsement for a product he did not sell, the Third Circuit concluded that trademark and the right of publicity are “close analogues.” Therefore, the court held that the unauthorized use of Hepp’s likeness in online advertisements “misappropriated the effort she spent to build a valuable reputation, so it could confuse consumers by suggesting she endorses the service” in the advertisement.

Although Judge Furman in Ratermann agreed that Zacchini stood for the proposition that the common law right of publicity is analogous to patent and copyright law, he concluded that the interests protected by Sections 50 and 51, the New York statute at issue, were “entirely distinct from” common law right of publicity claims. Judge Furman held that Zacchini expressly stated that “[t]he interest protected in permitting recovery [under the New York statute] is clearly that of reputation, with the same overtones of mental distress as in defamation.”

Another notable difference between the two cases is the courts’ analysis of the New York and Pennsylvania statutes protecting a person’s right of publicity. In determining whether the right of publicity is an intellectual property right, Judge Furman did not discuss or refer to the statutory language of Sections 50 and 51. Rather, he focused on New York state court precedent interpreting Sections 50 and 51 and concluded that “these authorities leave no doubt that a claim under Sections 50 and 51 . . . sounds in privacy, not intellectual property.” In contrast, the Hepp court quoted the Pennsylvania statute’s language that provides a right of publicity cause of action for those whose likeness “is developed through the investment of time, effort, and money.” 

While Judge Furman held in Ratermann that Section 230(e)(2)’s intellectual property exception does not apply to claims under Sections 50 and 51, he did not reach the broader question of whether the intellectual property exception applies to state intellectual property claims at all. In contrast, the Ninth Circuit in Perfect 10 held that, because Section 230 does not contain any express definition of “intellectual property,” the term “intellectual property” in Section 230(e)(2) must mean “federal intellectual property.” Although the California Supreme Court has held that the right of publicity is a form of intellectual property, the Ninth Circuit reasoned that, because there is no uniform definition of “intellectual property” across the states and that content on a website may be viewed across the Internet 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.”

The Ratermann decision reminds us that, as the Internet continues to evolve, judicial construction of Section 230’s scope and limitations remains in flux. Nearly thirty years after Section 230 was enacted, courts continue to grapple with novel issues regarding its scope, including the scope of the “intellectual property” exception in Section 230(e)(2).