It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circuit, the Eastern District of Pennsylvania in Hepp v. Facebook ruled that social media platforms are immune under the Communications Decency Act for right of publicity violations under state law by users of such platforms.
Karen Hepp, a television news anchor for FOX 29 News, filed a complaint against several social media platforms, including Facebook, Imgur, Reddit, and Giphy (collectively, “social media defendants”), alleging that the social media defendants violated Pennsylvania’s right of publicity statute and Hepp’s common law right of publicity, based on such defendants’ “unlawful use of her image.”
Two years before filing her complaint, Hepp discovered that a photograph of her was taken without her consent by a security camera in a New York City convenience store. The photograph was subsequently used in online advertisements for erectile dysfunction and dating websites. For example, Hepp’s photograph was featured: (a) on Imgur under the heading “milf,” and (b) on a Reddit post titled “Amazing” in the subgroup r/obsf (“older but still $#^able”). Hepp alleged that, as a public figure, she suffered harm from the unauthorized publication of her image on the platforms hosted by the social media defendants, but she did not allege that such defendants created, authored, or directly published the photograph at issue.
In response to Hepp’s complaint, each social media defendant filed a motion to dismiss, asserting, among other things, immunity under Section 230 of the CDA. As we have noted in prior articles, Section 230(c) provides a federal safe harbor for internet service providers against liability for content originating from third-party users and content creators. This safe harbor is not boundless, however. For example, Section 230(e)(2) carves out causes of action “pertaining to intellectual property.” Hepp attempted to use this exception to get around the Section 230 immunity afforded to the social media defendants, but the court was not convinced. Ultimately, the court sided with the social media defendants and granted their motions to dismiss.
In reaching its decision, the court acknowledged the circuit split between the Ninth Circuit and several district courts over whether the CDA preempts state intellectual property claims. The court compared two cases: (i) a Ninth Circuit case, Perfect 10 v. CCBill, which held that the CDA preempts right of publicity claims; and (ii) a case by the Southern District of New York, Atl. Recording Corp. v. Project Playlist, which reached the opposite holding of Perfect 10. In the end, the court reached the same conclusion as the Ninth Circuit—that the CDA preempts state law intellectual property claims, including state right of publicity claims. The court was persuaded by the Ninth Circuit’s reasoning in Perfect 10, stating that the inclusion of state law intellectual property claims within the exceptions of the Section 230 safe harbor “would fatally undermine the broad grant of immunity provided by the CDA.” Accordingly, the court held that Hepp’s statutory and common law right of publicity claims based on state law did not fall within the Section 230(e)(2) exception, and that only federal intellectual property claims meet the Section 230(e)(2) exception. With this decision, the Eastern District of Pennsylvania deviated from its neighbors, the First and Second Circuits, and aligned itself with the Ninth Circuit, by maintaining the robust protections of the CDA with respect to the scope of Section 230(e)(2).
Given the unsettled issue of whether Section 230(e)(2) applies to all intellectual property claims (both federal and state), a plaintiff’s chance of success in asserting Section 230(e)(2) in response to a defendant’s motion to dismiss would likely vary from court to court. So, where do things currently stand amongst the circuits? The following is a status chart to help navigate the issue:
|Circuit||Does the Section 230 safe harbor protect against state IP claims?||Case|
|First||No||Doe v. Friendfinder Network (D.N.H. 2008) (disagreeing with the Ninth Circuit’s decision in Perfect 10 that Section 230(e)(2) exempts only federal intellectual property laws from the operation of Section 230)|
|Second||No||Atl. Recording Corp. v. Project Playlist (S.D.N.Y. 2009) (denying defendant’s motion to dismiss by finding that Section 230(e)(2) does not immunize the defendant from plaintiffs’ state law claims)|
|Third||Yes||Hepp v. Facebook (E.D. Pa. June 5, 2020)|
|Fourth||Undecided||No case available|
|Fifth||Undecided||No case available|
|Sixth||Undecided||No case available|
|Seventh||Undecided||Stayart v. Yahoo! (E.D. Wis. 2009) (declining to decide on the question of whether Section 230(e)(2) applies to the plaintiff’s state law claims)|
|Eighth||Undecided||No case available|
|Ninth||Yes||Perfect 10 v. CCBill (9th Cir. 2007)|
|Tenth||Undecided||No case available|
|Eleventh||Undecided||Almeida v. Amazon (11th Cir. 2006) (declining to determine whether the CDA preempts the plaintiff’s state law right of publicity claim)|
|Federal||Undecided||No case available|
As illustrated by the chart, the state versus federal intellectual property issue under Section 230(e)(2) is far from a decided matter amongst the courts. Finally, it is unclear how recent efforts by the legislative and executive branches to revoke, modify, or scale back the Section 230 immunity will affect future opinions of the courts, especially those courts for which the issue of the scope of Section 230(e)(2) would be a case of first impression. Only time will tell.