Eleventh Circuit almost lets Section 230 preempt right of publicity claim

In the recent case of Almeida v. Amazon.com, Inc., the Eleventh Circuit Court of Appeals came close to issuing an interesting ruling in a case involving immunity under the Communications Decency Act, at 47 U.S.C. §230. At issue was whether Section 230 provided immunity to Amazon.com in a suit brought against it alleging violation of the plaintiff’s right to publicity.

A photograph of plaintiff Almeida appeared on the cover of a book that Amazon.com offered for sale online. Almeida filed suit claiming, among other things, that she had not authorized the use of the photograph in the way it appeared on the cover of the book. Accordingly, Almeida argued, Amazon.com had violated Florida’s right of publicity statute, Fla. Stat. §540.08.

The district court granted summary judgment in favor of Amazon.com, holding that Section 230 preempted the state right of publicity claim. On review, the appellate court affirmed summary judgment, but disagreed that Section 230 applied.

The lower court had decided on its own (without Amazon.com making the argument) that Section 230 preempted the right of publicity claim. As any loyal reader of this weblog knows, Section 230 provides, in relevant part, that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Because Almeida was pursuing a claim against Amazon.com for information (the photo) provided by a third party, the district court held that Amazon.com could not be the “publisher or speaker” of that information, and therefore not liable.

The district court did not consider, however, 47 U.S.C. §230(e)(2), which states that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Almeida argued on appeal that her right of publicity claim was one sounding in intellectual property, and thus should have been unaffected by Section 230 immunity.

And the appellate court came oh-so-close to agreeing with Almeida on this point. But it found a way around having to answer the question of whether Section 230 provides immunity for right of publicity claims: Almeida’s claim would have failed anyway. Because it was clear from the complaint that Amazon did not use Almeida’s image for “trade, commercial, or advertising purposes,” there was no violation of the right of publicity as defined by the Florida statute.

Almeida v. Amazon.com, Inc., (Slip Op.) — F.3d —-, 2006 WL 1984448 (11th Cir., July 18, 2006).

This content originally posted by Evan Brown to InternetCases.com.