Combating Internet Trolls: The Right of Publicity and Section 230

AuthorJess Miers, Brian L. Frye
Pages16-63
Published in Landslide® magazine, Volume 13, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Combating
Internet Trolls
By Jess Miers and Brian L. Frye
Images: GettyImages
The Right of Publicity
and Section 230
Published in Landslide® magazine, Volume 13, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Jess Miers is a third-year law student at Santa Clara University
School of Law, studying internet law, content moderation, and
§ 230. She can be reached at miersjessica@gmail.com. Brian L.
Frye is the Spears-Gilbert Professor of Law at the University
of Kentucky College of Law. He can be reached at brianlfrye@
gmail.com. The authors greatly appreciated comments on this
article from Professor Eric Goldman, Professor Maybell Romero,
Professor John Villasenor, and the participants at the Santa
Clara University School of Law Works in Progress Intellectual
Property (WIPIP 2020) conference.
The bombing of a federal building in Oklahoma City
tragically shook the nation on April 19, 1995. This
horric act of domestic terrorism claimed the lives of
168 people, including 19 children, and injured hun-
dreds more. Just six days after the bombing, AOL
user “Ken ZZ03” posted an appalling message to the
Michigan Military Movement message board, offer-
ing T-shirts and merchandise emblazoned with slogans such
as “Visit Oklahoma . . . It’s a BLAST!!!,” “Putting the kids to
bed . . . Oklahoma 1995,” and “McVeigh for President 1996”
for purchase—just call “Ken.” The post included Ken Zeran’s
actual phone number, inviting abuse from understandably
appalled AOL users. However, Zeran had nothing to do with
the post; he was a victim of internet trolling.
Internet Trolls and Section 230 Immunity
For better or worse, the internet is full of trolls. No sooner is
a social media service created than people devise new and
amusing ways in which to troll it. Indeed, trolls are the unsung
innovators of the internet, relentlessly misusing websites in
ways that their creators never imagined. Trolls not only force
internet companies to improve their services but also are
largely responsible for the peculiar argot of the internet. Of
course, trolling comes with both costs and benets—or rather,
the benets of trolling typically come at the cost of collateral
damage. While the public enjoys the fruits of trolling, be they
lasting improvements or ephemeral amusements, the subject of
the troll is usually less than amused.
The American litigation system guarantees those who have
been wronged the opportunity to exact judicial revenge against
their offenders. And yet, internet trolls seem to avoid this ret-
ribution. Who do you sue when the tortfeasor is anonymous?
For many victims of internet malfeasance, suing the website
is a tempting alternative. But for the most part, a vital inter-
net law—colloquially known as § 2301—thwarts this path to
relief. Section 230 immunizes websites from liability for their
user-generated content.2 Undoubtedly, § 230 also created the
modern-day internet.3 Today, internet services and market
entrants owe their continued existence to this ostensibly impen-
etrable immunity.4 Creative litigants, however, increasingly
threaten § 230’s protective shield by poking holes in it.5
The Rights of Publicity and Privacy
The right of publicity might create such a hole. It is well
understood and accepted that § 230 excludes federal intellec-
tual property claims, except those brought under the Defend
Trade Secrets Act. But courts are split on § 230’s application
Published in Landslide® magazine, Volume 13, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
to state intellectual property claims. Publicity rights are one
of those state intellectual property claims. Frustratingly, the
courts do not agree about what the right of publicity protects.
Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.6
was an early federal court ruling addressing the commercial
value of a name or likeness. The right of publicity was gen-
erally carved out of the right to privacy.7 But courts often
struggle to discern the difference between the rights. Though
the right of publicity is in many ways similar to the misap-
propriation branch of the right to privacy, the two protect
fundamentally different interests.8
Some states—by statute or common law—draw a clear
line: the right to privacy is a personal right that protects
an individual’s personality and feelings, while the right of
publicity is an intellectual property right that protects the
commercial value of an individual’s identity.9 Unsurprisingly,
complications arise in states that fail to draw that line.10
States also diverge on whom the right of publicity protects.11
Some states reserve the right for celebrities under the theory
that only celebrities have commercially valuable personalities;
others reserve the right for noncelebrities under the theory that
celebrities lack a protectable privacy interest. However, for the
most part, the trend is to extend protection to both celebrities
and noncelebrities, while sometimes offering special treatment
for individuals with commercially valuable identities.12
While § 230 explicitly excludes claims “pertaining to
intellectual property,13 the Ninth Circuit Court of Appeals,
in Perfect 10, Inc. v. CCBill LLC,14 narrowly interpreted the
exclusion as applying only to federal intellectual property. But
no courts outside the Ninth Circuit have agreed with that nar-
row interpretation.15 Rather, it seems that the general consensus
is to exclude both federal and state intellectual property claims
from § 230.16 What results? Convoluted and conicting treat-
ment of publicity rights claims against websites.
In Carafano v. Metrosplash.com, Inc.,17 the Ninth Circuit
held that § 230, in the interest of speech-protective pub-
lic policy, immunized matchmaking websites from publicity
rights claims arising from fake dating proles. But in Almeida
v. Amazon.com, Inc.,18 the Eleventh Circuit Court of Appeals,
in dicta, hinted that the right of publicity is an intellectual
property right that falls outside of § 230’s reach.
The potential power of the publicity rights exception
can be seen in how it might have changed the result in the
seminal § 230 precedent, the 1997 Fourth Circuit Court of
Appeals ruling in Zeran v. AOL, Inc.19
How Ken Zeran Might Have Won
Tormented by furious callers inquiring about the tasteless
T-shirt ad, Zeran demanded that AOL immediately remove
the post. Unfortunately, AOL delayed. Meanwhile, an Okla-
homa City radio station broadcasted the post along with
Zeran’s phone number, inciting further harassment. Zeran
sued AOL for negligently failing to remove the defamatory
post. His negligence claim was preempted, and Zeran became
known as the rst victim of internet trolling to be defeated
by § 230. Could the right of publicity have changed Zeran’s
story? And for that matter, could it be leveraged by future vic-
tims of internet trolling?
Ken Zeran was an early e-personation victim. A similar
e-personation case, Doe v. Friendnder Network, Inc.,20 in which
the First Circuit Court of Appeals rejected § 230 immunity for
a publicity rights claim against a defendant web service, might
illustrate the potential counterfactual outcome in Zeran’s case.
In Friendnder, an anonymous troll created a fake Adult-
FriendFinder prole using the female plaintiff’s photo and
identifying information under the screen name “petra03755.”
AdultFriendFinder.com was known as “the World’s Larg-
est SEX and SWINGER Personal Community,” a community
with which the plaintiff was mortied to discover she had
become associated.21 The plaintiff disclaimed any involve-
ment with the creation of the prole. Meanwhile, portions of
the prole appeared as “teasers” in internet search engines
and as advertisements for the service on various unafliated
websites. Eventually, the fraudulent account was removed.
The plaintiff asserted eight causes of action against the Adult-
FriendFinder service, one of which included violation of the
plaintiff’s publicity rights.
The First Circuit rejected the Ninth Circuit’s CCBill inter-
pretation of § 230(e)(2), holding that the exclusion applied to
both federal and state intellectual property claims. The court
then considered whether the plaintiff’s publicity rights claim
arose out of a law pertaining to intellectual property under the
exclusion. The court took great care in distinguishing the plain-
tiff’s personal privacy claims—all of which were immunized
by § 230—from her misappropriation/right of publicity claim.
Agreeing with the plaintiff that the right of publicity is widely
recognized as an intellectual property right, the court rejected
the defendant’s motion to dismiss, concluding that the publicity
rights claim fell within the § 230(e)(2) exclusion.
State choice of law principles create an extra layer of
uncertainty for § 230’s application. The Friendnder court
applied New Hampshire law, recognizing a cause of action
for publicity rights infringement under the Restatement (Sec-
ond) of Torts.22 Here, the plaintiff’s allegations were sufcient
to make out a plausible claim. The defendant web services
made an unauthorized use of identiable aspects of the plain-
tiff’s identity, which appeared as “teasers” on other websites,
in an effort to increase the protability of their businesses.
Zeran’s procedural history tees up a complicated choice of
law issue. For cases in which jurisdiction is based on diversity
of citizenship, Erie Railroad Co. v. Tompkins23 requires a fed-
eral court to apply state substantive law. Under Klaxon Co. v.
Stentor Electric Manufacturing Co.,24 the federal court must
apply the choice of law rules of the state in which the district
court is located. For diversity cases that are transferred from
one federal court to another, choice of law turns on the reason
for the transfer. If the case was transferred for discretionary
reasons, then the transferee court applies the law that would
have been applied in the transferor court per the transferor
court’s state choice of law rules.25 Zeran was such a case.
Zeran originally led his claims in Oklahoma, but AOL
successfully moved to have the suit transferred to Virginia,
where the case was ultimately decided. Because the case was
transferred for discretionary reasons (convenience), we con-
sider Oklahoma’s choice of law rules. Oklahoma follows the
“modern approach,” applying the law of the state having the

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