EFF to Court: Don’t Let Pseudo-IP Thwart Speech, Innovation, and Competition

The threats to online expression and innovation keep coming. One that’s flown under the radar is a misguided effort to convince the Third Circuit Court of Appeals to allow claims based on the “right of publicity,” (i.e., the right to control the commercial exploitation of your persona) because some people think of this right as a form of “intellectual property.” State law claims are normally barred under Section 230, a law has enabled decades of innovation and online expression. But Section 230 doesn’t apply to “intellectual property” claims, so if publicity rights are intellectual property (“IP”), the theory goes, intermediaries can be sued for any user content that might evoke a person. That interpretation of Section 230 would effectively eviscerate its protections altogether.

Good news: it’s wrong.

Bad news: the court might not see that, which is why EFF, along with group of small tech companies and advocates, filed an amicus brief to help explain the law and the stakes of the case for the internet.

The facts here are pretty ugly. The plaintiff is a reporter who discovered that an image of her caught on a surveillance camera was being used in ads and shared on social media without her permission. She’s suing Facebook, Reddit, Imgur and a porn site for violating her publicity rights, The district court dismissed the case on Section 230 ground, following strong precedent from the Ninth Circuit holding that the IP carveout doesn’t include state law publicity claims. Hepp appealed.

As we explain in our brief, the court should start by looking at Section 230 itself. Generally, if the wording of a law makes sense to a general reader, a court will keep things simple and assume the straightforward meaning. But if the words are unclear or have multiple meanings, the court has to dig deeper. In this case, the term at issue, “intellectual property,” varies widely depending on context. The term didn’t even come into common use until the latter half of the 20th Century, but it’s now used loosely to refer to everything from trade secrets to unfair competition.

Given that ambiguity, the court should look beyond the text of the law and consider Congress’ intent. Within the context of Section 230, construing the term to include publicity rights is simply nonsensical.

Congress passed Section 230 so that new sites and services could grow and thrive without fear that a failure to perfectly manage content that might run afoul of 50 different state laws might lead to crippling liability. Thanks to Section 230, we have an internet that enables new forms of collaboration and cultural production; allows ordinary people to stay informed, organize and build communities in new and unexpected ways; and, especially in a pandemic, helps millions learn, work and serve others. And new platforms and services emerge every day because they can afford to direct their budgets toward innovation, rather than legal fees.

Excluding publicity rights claims from the immunity afforded by Section 230 would put all of that in jeopardy. In California, publicity rights protections apply to virtually anything that evokes a person, and endure for 70 years after the death of that person. In Virginia, a publicity rights violation can result in criminal penalties. Alaska doesn’t recognize a right of publicity at all. Faced with a panoply of standards, email providers, social media platforms, and any site that supports user-generated content will be forced to tailor their sites and procedures to ensure compliance with the most expansive state law, or risk liability and potentially devastating litigation costs.

For all their many flaws, copyrights and patent laws are relatively clear, relatively knowable, and embody a longstanding balance between rightsholders, future creators and inventors, and the public at large. Publicity rights are none of these things. Instead, whatever we call them, they look a lot more like other torts, like privacy violations, that are included within Section 230’s traditional scope.

Ms. Hepp has a good reason to be angry, and we didn’t file our amicus because we are concerned about the effects of an adverse ruling on Facebook in particular, which can doubtless afford any liability it might incur. The problem is everyone else: the smaller entities that cannot afford that risk, or even the costs of defending a lawsuit; and the users who rely on intermediaries to communicate with family, friends and the world, and who will be unable to share content that might include an image, likeness or phrase associated with a person should those intermediaries be saddled with defending against state publicity claims based on their users’ speech.

What is worse, it will help entrench the current dominant players. Section 230 led to the emergence of all kinds of new products and forums but, equally importantly, it has also kept the door open for competitors to follow. Today, social media is dominated by Twitter, Facebook and Youtube, but dissatisfied users can turn to Discord, Parler, Clubhouse, TikTok and Rumble. Dissatisfied Gmail users can turn to Proton, Yahoo!, Riseup and many others. None of these entities, entrenched or emergent, would exist without Section 230.

Hepp’s theory raises that barrier to entry back up, particularly given that intermediaries would face potential liability not only for images and video, but mere text as well. To mitigate that liability risk, any company that relies on ads will be forced to try to screen potentially unlawful content, rewrite their terms of service, and/or require consent forms for any use of anything that might evoke a persona. But even strict terms of service, consent forms, and content filters would not suffice: many services will be swamped by meritless claims or shaken down for nuisance settlements. Tech giants like Facebook and Google might survive this flood of litigation, but nonprofit platforms and startups – like the next competitors to Facebook and Google – would not. And investors who would rather support innovation than lawyers, filtering technologies, and content moderators, will choose not to fund emerging alternative services at all.