“Right of Publicity” Claims Pose a Risk To Democratized Information and Research
Before my mother discovered Ancestry.com, she lamented over the travel needed to find records for our family tree. Now, online access to records, photos, letters, and news clippings solve this problem.
Researchers of all types benefit from the online availability of materials that pre-date the internet. Knowledge is now more broadly accessible — no longer limited to those with the time, resources, and ability to travel. But “right of publicity” legal claims are putting these benefits at risk, by threatening to make it impossible for entities who put information online from offering and advertising access as a service.
A group of recent lawsuits have created renewed controversy in the courts on the interplay between Section 230 and the right of publicity. The right of publicity varies by state, but generally protects an individual’s name or likeness from being used commercially without their consent. Section 230, meanwhile, protects online providers from liability for publication of information from someone else, meaning that when someone authors harmful content that’s posted on YouTube or Twitter, the person who has to answer for that content is the author, rather than the platform.
However, there’s some murkiness in the law about where the protections of Section 230 end for digital platforms and where right of publicity protections begin for individuals.
Right of Publicity vs. Section 230
Different federal courts have approached the issue in different ways. In September, the Third Circuit Court of Appeals decided in Hepp v. Facebook that Pennsylvania publicity claims are encompassed in Section 230’s intellectual property exception.¹ That means an individual can hold a platform liable for someone else’s content using their name or likeness commercially, a violation of their right of publicity.
In contrast, the Ninth Circuit has long standing precedent that right of publicity claims fall outside the intellectual property exception and that Section 230 may apply. That said, several cases are pending in the circuit that are causing courts to reconsider the interplay between right of publicity claims and Section 230.
Recent publicity lawsuits target online providers that make material from third parties available on a commercial basis. Some of these cases involve data brokers aggregating information from multiple sources.² Other cases involve the digitization and sale of access to yearbooks.³ Both sets of cases are focused on whether the provider received the information from “another information content provider,” a requirement for Section 230(c)(1) immunity to apply.
Case in point: Sessa v. Ancestry.com
The implications of these cases are far-reaching.
For example, in Sessa v. Ancestry.com, a judge denied Ancestry’s motion to dismiss publicity claims related to its yearbook service. Ancestry offers subscriptions to a database of photos and information from yearbooks that have been donated to them. Ancestry is being sued for right of publicity claims by individuals included in the yearbooks, because their pictures and biographical data was included in the subscription service and in promotions for the service.⁴ Ancestry filed a motion to dismiss asserting Section 230 immunity.
The court declined to apply 230 immunity to Ancestry on two separate grounds related to whether the “information was provided by another information content provider.”
1. Who posted the content
First, the court concluded that Ancestry isn’t covered by Section 230 because it posted the yearbook information, saying Section 230 “protects websites from liability [under state or local law] for material posted on the[ir] website[s] by someone else.”⁵
This stands in stark contrast to decisions by numerous courts applying Section 230 immunity to providers who post third party content, including the Tenth Circuit in the seminal Section 230 case Ben Ezra, Weinstein, & Co. v. America Online Inc. (2000). In Ben Ezra, plaintiffs tried to hold AOL liable for erroneous stock quote information in the feed AOL obtained from a third party. The Tenth Circuit said, “47 U.S.C. § 230 creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party.”(emphasis added). Other courts have followed Ben Ezra, for example: National Association of the Deaf v. Harvard; General Steel v. Chumley, Beyer v. Parents for Megan’s Law.
This long-standing precedent has allowed the development of valuable services that could be disrupted by a change in the law, including:
- Customer support assisting consumers with technical difficulties related to sending email, posting a document online, or updating content on their blog;
- Search engines returning results from an index of third party websites;
- Linking to articles, podcasts, social media posts, and other third party content on a website (such as pulling together a set of resources on a specific issue and including articles, podcasts, social media, op-eds and other material from third parties on the topic);
- Libraries digitizing and posting content to allow online access; and
- Moderators of online forums reviewing posts prior to publishing.
2. Whether original publisher intended publication online
The second reason the court gave for denying 230 immunity is that it is not clear that the original publisher intended the material to be posted on the internet. Judge Navarro relies on the Ninth Circuit’s contorted reading of 230 in Batzel v. Smith. In Batzel, the court denied 230 immunity to an individual who posted an email he received to a message board, because the sender of the email didn’t intend for it to be published online. Using this as a guide, Judge Narvarro decided that 230 cannot be applied unless there are facts showing the original publisher of the yearbooks intended for them to be posted online.
But what if the internet did not exist when a work was published? Yearbooks, photographs, books, art, newspaper articles, speeches, and performances may pre-date the internet — ensuring that the publisher did not intend for the material to be published online.
In most instances, efforts to make works that pre-date the internet available online should be considered a public good; making knowledge and culture more widely accessible and enabling new opportunities for research.
If anyone included in such a work can sue an online service providing access to the material it puts the viability of any commercial efforts of this nature at risk. This puts a substantial burden on libraries and universities and unquestionably shrinks the amount and breadth of older material that will find its way online.
Ancestry is appealing the decision in Sessa to the Ninth Circuit.
¹ Facebook’s petition for rehearing was recently denied.
⁴ Note that the publishers of the materials are not plaintiffs in these suits and whether publishers may have intellectual property claims is outside the scope of the cases and this discussion.
⁵ Sessa at p. 20, quoting Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (internal modifications original) (quoting Doe v.Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016). In Dyroff, which the court claims supports the contention that 230 only applies to user-posted content, the quote is actually preceded by the words “in general.” This immediately follows a note about the “prototypical” Section 230 case involving user-posted messages to online bulletin boards. In fact, the opinion says, “Ultimate Software was not an information content provider because it did not create or develop information (or content). Rather, it published information created or developed by third parties.”
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