Section 230 of the 1996 Communications Decency Act, a statute passed when the Internet was in its relative infancy, gives broad immunity to online platforms, generally protecting them from lawsuits stemming from third-party postings—but with a notable exception. Section 230 does not shield a defendant from liability for violating intellectual property rights. In Ratermann v. Pierre Fabre USA, Inc., the SDNY held, as a matter of first impression, that the intellectual property exception does not extend to actions under Section 50 of the New York Civil Rights Law, which prohibits, among other things, using a person's likeness for advertising purposes without their written consent.
Patty Ratermann, a professional fashion model, signed a single-use license with QuickFrame allowing it to use her likeness on Instagram—and Instagram only. After learning that other companies, apparently unrelated to QuickFrame, were using her likeness on their websites to promote certain products made by Pierre Fabre USA, Inc. (d/b/a Avène), Ms. Ratermann filed suit, alleging, among other things, that they had violated Section 50.
Fig. 1 (an advertisement in dispute)
Three of the defendants—Amazon, Walmart, and Ulta ("the Online Retailers")—moved to dismiss the Section 50 claims based on the immunity provided by Section 230 (47 U.S.C. § 230(c)(1)). Section 230 states, in relevant part, that "[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." A defendant is shielded under this provision, the court recognized, if three elements are met: (1) the defendant is a provider or user of an "interactive computer service"; (2) the claim against the defendant is based on "information provided by another information content provider" (i.e., a third party); and (3) the claim would treat the defendant as the "publisher or speaker" of that information. The Online Retailers satisfied all three elements, the court found.
Initially, the court concluded that the Online Retailers fell "comfortably" within the definition of an "interactive computer service," which Section 230 defines to include any information service or system "that provides or enables computer access." The court explained that a website that is "a passive host of third party content" meets this definition, and it noted that what Ms. Ratermann's complaint alleged was that the Online Retailers operated websites where third-party products (including Avène) could be purchased. Moreover, the court buttressed its conclusion that the first element was satisfied by citing cases where other courts had, in similar situations, classified Amazon as an interactive computer service.
Next, the court addressed the second element, which required the Online Retailers to show that Ms. Ratermann's claims were based on information provided by another information content provider, and found that she did "not directly contest this point . . . [n]or can she." As the court recognized, Ms. Ratermann's complaint alleged that the Online Retailers had "exploited" her likeness, but only after obtaining it from two of the other defendants—Pierre Fabre and QuickFrame—and the complaint did not allege that the Online Retailers "materially contributed to what made the content itself unlawful."
Then, concluding that Ms. Ratermann's claims derived from the Online Retailers' status as "publishers" of her likeness, the court found that they satisfied the third element of Section 230. Ms. Ratermann had argued that she was not seeking to hold the Online Retailers liable simply as publishers of a third party's content, but instead for "exploiting her likeness for advertising purposes" and "commercial gain." But the court rejected that argument "as a meaningless distinction." "At bottom," the court said, Ms. Ratermann's claims against the Online Retailers were based on their "allegedly unlawful 'dissemination' of her likeness and nothing more." Indeed, the court noted, her complaint alleged that others (Pierre Fabre and QuickFrame) had "produced the relevant content," and that "the only duty" the Online Retailers violated was "using" that content—"that is, publishing or disseminating" it "without consent." And importantly in this context, the court added that Ms. Ratermann had not alleged that the Online Retailers "actively and directly sold Avène products on their websites," or even that "they themselves uploaded the promotional materials at issue"—but only that they "served as online marketplaces for third parties to sell the products."
Even though the court held that the Online Retailers satisfied the three elements of Section 230, it recognized that this was not the end of its inquiry. As noted previously, Section 230 includes an exception for "any law pertaining to intellectual property." (Its specific language provides that "[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.") As a result, the court addressed the question of whether Ms. Ratermann's Section 50 claims fell within this exception and held that it did not.
Recognizing the issue as one of first impression, the court rejected Ms. Ratermann's argument that Section 50 established "a trademark-like intellectual property claim." On the contrary, the court held, the relevant authorities left "no doubt" that Section 50 "sounds in privacy, not intellectual property." The court relied primarily on Gautier v. Pro-Football, Inc., which it described as a "foundational decision" of the New York Appellate Division that was "especially instructive." As the court observed, the Appellate Division explained in Gautier that Section 51 (which provides civil remedies for violations of Section 50) created "a limited right of privacy," that Section 50 allows a plaintiff to sue for damages "for injury to the person, not to his property or business," and that any recovery under Section 50 "is grounded on the mental strain and distress, on the humiliation, on the disturbance of the peace of mind suffered by the individual affected." Moreover, the court added that although the Appellate Division had also held in Gautier that "damages may include recovery for a so-called 'property' interest inherent and inextricably interwoven in the individual's personality," the Gautier court "concluded in no uncertain terms that 'it is the injury to the person not to the property which establishes the cause of action. That is the focal point of the statute.'" (The italics were added by the Ratermann court.) Therefore, the court concluded that Ms. Ratermann's Section 50 claims did "not fall within the intellectual property exception to Section 230," from which it followed that the Online Retailers were "entitled to immunity under Section 230." As a result, the court granted the Online Retailers' motion to dismiss Ms. Ratermann's Section 50 claims against them.
Point of Interest
Because the court found that Ms. Ratermann's Section 50 claims were not intellectual property claims, and thus did not fall within Section 230's exception for that category of claims, there was no need for the court to address another question—whether the phrase "any law pertaining to intellectual property" encompasses intellectual property claims brought under state law or only those brought under federal law. As the court recognized, a circuit split currently exists on this issue.
The case is Ratermann v. Pierre Fabre USA, Inc., No. 22-CV-325, 2023 WL 199533 (S.D.N.Y. Jan. 17, 2023).
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