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The “right to control the commercial use of your persona” can be used to censor internet content, court rules

An unforeseen challenge to free speech.
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Some protections provided to internet platforms (intermediaries) by Section 230 of the Communications Decency Act (CDA) to host third party content without legal liability have been circumvented by a recent opinion of US Court of Appeals for the Third Circuit.

We obtained a copy of the opinion for you here.

That is because Section 230 doesn’t cover intellectual property (IP) rights – yet it is precisely this that the court considered in a case brought by a journalist who sued Facebook, Reddit, Imgur, and a porn site for a violation of her “right of publicity,” that is, “the right to control the commercial use of your persona” – and the court has decided that this right falls under IP rules.

The journalist, Karen Hepp, took legal action against the internet platforms after discovering that her image taken from surveillance videos was being shared without her approval. If publicity rights are not interpreted as a component of IP rights, these sites would be in the clear, with Section 230 protecting them; but now, says the EFF, thanks to the court’s “disastrous” ruling, they may start to get sued and forced to spend large amounts of money if a violation of the right to publicity is proven in the third-party content they host.

The Third Circuit overruled the district court that previously dismissed the reporter’s lawsuit citing precisely Section 230 protections granted to “intermediaries.”

And when it comes to how different states legislate to protect publicity rights, many are quite drastic, broadly covering “anything that evokes a person,” as in California – where the rules also apply for 70 years after that person passes away – to Virginia, where this type of violation is criminalized. But there are also states like Alaska where the right of publicity isn’t valid at all.

Many fear that the outcome of the appeal in the Hepp case will mean that any internet platform that has third-party content, such as social media and email services, will choose to suppress speech rather than risk legal liability and expensive litigation.

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