Third Circuit Says Section 230 Doesn't Apply to Publicity Rights Claims-Hepp v. Facebook
Internet Law

Yearbook Database Cases Are Vexing the Courts-Sessa v. Ancestry

Yearbook Database Cases Are Vexing the Courts-Sessa v. Ancestry

This is another entry in the genre of publicity rights cases against commercial databases vending information about people. Courts are struggling with how to analyze these cases, especially in the context of paywalled yearbook databases. This ruling turns into a pretty bad loss for Ancestry because it can’t rely on Section 230 or shake the publicity rights claim on a motion to dismiss.

Section 230. Ancestry doesn’t qualify for Section 230 for 2 independent reasons:

  • “while the yearbook publishers originated the content that Ancestry used to create its database, and the yearbooks were provided by third parties, Ancestry alone is responsible for posting the material on its website after it receives the records from others.” The court is clearly wrong here. For example, Google Search does the same thing and still qualifies for Section 230. Examples of other cases that have reached the opposite conclusion to this court include General Steel v. Chumley (“nothing in § 230 or the relevant case law limits § 230 immunity to information submitted directly to a website by a third party”) and D’Alonzo v. Truscello.
  • Per Batzel, “the mere existence of the hard copy yearbooks does not indicate that the publishers ‘provided’ the yearbooks for publication on the internet.” Well, it’s true we may not know the suppliers’ motivations on a motion to dismiss where the defense can’t introduce evidence. But if a yearbook database vendor gets a hard copy of a yearbook, what does the supplier think is going to happen with it?

Publicity Rights. The court shoots down Ancestry’s defenses:

  • No commercial sponsorship: “the value of Ancestry’s Yearbook Database derives exclusively from prospective customers’ interest in the persons whose images are depicted.” Certainly Ancestry could have made a commercial sponsorship when it referenced plaintiffs in promotional emails. The court says even giving trial access to the database could qualify because “Ancestry is trading off the value of customers searching for Plaintiffs’ names in order to entice them into purchasing a subscription.” This is a potentially damning ruling for all freemium databases that commercialize individual people’s data.
  • Public affairs. “Ancestry attempts to expand the understanding of public affairs from reporting on events and public persons to anything that may interest private individuals.”
  • Copyright preemption. “Plaintiffs’ claims concern Ancestry’s use of Plaintiff’s likeness, not merely their publication of Plaintiffs’ photographs.”

Intrusion into seclusion. The court dismisses the claim because there’s probably no privacy interest in yearbook photos, and publishing them isn’t sufficiently offensive.

Implications. Just last week, the Third Circuit in the Hepp case suggested that publicity rights won’t wreak havoc on the Internet if Section 230 doesn’t preempt them. And then rulings like this highlight the jurisprudential anarchy associated with publicity rights on the Internet. (Note this ruling took place in a Ninth Circuit court, so the ccBill precedent made a 230 defense possible. Still…).

Case citation: Sessa v. Ancestry.com Operations Inc., 2021 WL 4245359 (D. Nev. Sept. 16, 2021)

BONUS: Defendant RocketReach vends a database of individuals’ email addresses and phone numbers. The court shoots down its Section 230 defense:

The complaint’s description of defendant’s website is inconsistent with the inference that it functions as a “passive conduit.” Plaintiff’s theory is that defendant selects a portion of the information its database contains about a searched-for individual and displays it as bait to entice users to purchase subscriptions granting them access to additional information not only about that individual but about anyone in the database. In Huon, the Seventh Circuit acknowledged that an online platform cannot be held liable as the passive publisher of content provided by “another information content provider” but reversed the district court’s conclusion at the pleadings stage that the Communication Decency Act barred the plaintiff’s claim for defamation where the defendant allegedly “edited,” “shaped,” and “choreographed” content provided by others. While it may be, as defendant contends (again in the context of an affirmative defense on which defendant bears the burden of proof) that the information in defendant’s database is exclusively provided by “another information content provider,” the complaint alleges that defendant curated that information for commercial gain and used plaintiff’s and the class members’ identities to do so. These allegations, on their face, do not establish that the Communications Decency Act shields defendants from liability under the IRPA. See Lukis 454 F. Supp. 3d at 763 (declining to dismiss IRPA claim against defendant “alleged to have actively compiled and collated, from several sources, information regarding” the plaintiff).

Huon was an awful ruling, and there is no passive conduit prerequisite for Section 230. If Section 230 has a “curation” exception, that would completely reverse hundreds of prior rulings. UGH. Krause v. RocketReach, LLC, 2021 WL 4282700 (N.D. Ill. Sept. 21, 2021).

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