September 16, 2020 Feature

Combating Internet Trolls: The Right of Publicity and Section 230

Jess Miers and Brian L. Frye

©2020. Published in Landslide, Vol. 13, No. 1, September/October 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 or the copyright holder.

Who do you sue when the tortfeasor is anonymous? The website is a tempting alternative, but a vital internet law—§ 230—thwarts this path to relief.

Who do you sue when the tortfeasor is anonymous? The website is a tempting alternative, but a vital internet law—§ 230—thwarts this path to relief.

Photographer: grinvalds | Collection: iStock | Getty Images Plus

The bombing of a federal building in Oklahoma City tragically shook the nation on April 19, 1995. This horrific act of domestic terrorism claimed the lives of 168 people, including 19 children, and injured hundreds more. Just six days after the bombing, AOL user “Ken ZZ03” posted an appalling message to the Michigan Military Movement message board, offering 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 benefits—or rather, the benefits 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 retribution. 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 internet 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 impenetrable 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 intellectual property claims, except those brought under the Defend Trade Secrets Act. But courts are split on § 230’s application 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 generally 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 misappropriation 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 narrow 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 conflicting treatment of publicity rights claims against websites.

In Carafano v., Inc.,17 the Ninth Circuit held that § 230, in the interest of speech-protective public policy, immunized matchmaking websites from publicity rights claims arising from fake dating profiles. But in Almeida v., 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

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. Unsurprisingly, complications arise in states that fail to draw that line.

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 Oklahoma 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 first 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 victims of internet trolling?

Ken Zeran was an early e-personation victim. A similar e-personation case, Doe v. Friendfinder 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 Friendfinder, an anonymous troll created a fake AdultFriendFinder profile using the female plaintiff’s photo and identifying information under the screen name “petra03755.” was known as “the World’s Largest SEX and SWINGER Personal Community,” a community with which the plaintiff was mortified to discover she had become associated.21 The plaintiff disclaimed any involvement with the creation of the profile. Meanwhile, portions of the profile appeared as “teasers” in internet search engines and as advertisements for the service on various unaffiliated websites. Eventually, the fraudulent account was removed. The plaintiff asserted eight causes of action against the AdultFriendFinder service, one of which included violation of the plaintiff’s publicity rights.

The First Circuit rejected the Ninth Circuit’s CCBill interpretation 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 plaintiff’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 Friendfinder court applied New Hampshire law, recognizing a cause of action for publicity rights infringement under the Restatement (Second) of Torts.22 Here, the plaintiff’s allegations were sufficient to make out a plausible claim. The defendant web services made an unauthorized use of identifiable aspects of the plaintiff’s identity, which appeared as “teasers” on other websites, in an effort to increase the profitability 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 federal 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 filed 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 consider Oklahoma’s choice of law rules. Oklahoma follows the “modern approach,” applying the law of the state having the most significant relationship with the occurrence. For Zeran, this might mean Washington (Zeran’s domicile), Virginia (AOL’s principal place of business), or even Oklahoma, considering their interests and the expectation of the parties.

A Washington statute provides a property right in the use of an individual’s name, voice, signature, photograph, or likeness.26 The law protects against misuse in advertising products, merchandise, goods, or services.27 Some Washington Supreme Court decisions suggest that Washington also recognizes a common-law right of publicity.28 Both statutory and common-law right of publicity claims are available for celebrities and noncelebrities.29

Virginia also statutorily recognizes the right of publicity as a personal and intellectual property right, preventing the unauthorized use of the name or picture of any person for advertising or trade purposes.30 The statute extends equal protection to both celebrities and noncelebrities.31 Virginia does not recognize a common-law right of publicity.

Oklahoma law might also be sympathetic to Zeran’s hypothetical. Oklahoma statutorily recognizes the right of publicity—for both celebrities and noncelebrities—preventing the unauthorized and knowing use of another’s name, voice, signature, photograph, or likeness on products and merchandise or for advertising or selling such items or services.32 Oklahoma also recognizes a common-law right of publicity, allowing plaintiffs to allege both common-law and statutory claims.33

Crucially, § 230 avoids the choice of law dilemma altogether by preempting most claims, arising out of third-party violations, at the outset. Interestingly though, the Fourth Circuit in Curran v., Inc.34 appeared to agree, at least in dicta, with the Ninth Circuit’s interpretation of § 230(e)(2) in CCBill. So, perhaps § 230 might have prevailed against Zeran’s hypothetical publicity rights claim. But assuming the Fourth Circuit actually intends to exclude both federal and state intellectual property claims from § 230’s reach, we might find parallels between Zeran and Friendfinder.

At the very least, under any of the available state publicity rights laws, Zeran might have successfully alleged an unauthorized use of his name and identifying information (his phone number) in the false advertisement that appeared on AOL’s message boards. After all, the offending “advertisement” at least purported to offer T-shirts for sale, using Zeran’s name and contact information. Who’s to say a fake advertisement can’t violate the right of publicity? While Zeran might have struggled to find a commercial motive in AOL’s delayed removal of the post, the sharp split between the Ninth Circuit and decisions like Friendfinder generally discourage most courts from preempting publicity rights claims under § 230 anyway.35

The Future of Section 230 Immunity

The Zeran counterfactual defeats § 230’s entire purpose. Since Zeran, courts have interpreted the liability protections of § 230 broadly to cover claims beyond defamation and negligence.36 Claims arising out of day-to-day content moderation decisions, intentional infliction of emotional distress, and even false advertising fall within the law’s scope.37 Even the most creative litigants are often discouraged from bringing suits arising out of third-party content because they are guaranteed to fail.38 In turn, web entrepreneurs are encouraged to experiment and innovate without the chilling fear of impending litigation.39

But all bets are off if the right of publicity can create uncertainty as to § 230’s application and reach. The right of publicity’s scope is concerning. It might protect everyone, from celebrities like Johnny Carson40 to noncelebrities like Ken Zeran; it might protect everything, like the use of names, likenesses, and identities, including those that merely “conjure up” an association with an individual.41 And while most states at least require an element of commercialization or advertising, others leave the door wide open for other kinds of misuse.42

Today, the right of publicity continues to threaten § 230’s efficacy. In 2017, a California trial court, in Cross v. Facebook, Inc.,43 scrambled the landscape by refusing to dismiss the plaintiff’s publicity rights claims under CCBill. While the error was fixed on appeal, it was done so by sidestepping CCBill and holding that the claim was irrelevant because Facebook did not use the plaintiff’s identity.

Meanwhile, it still remains unclear whether internet companies can promote their services using third-party content. In a recent case, Lukis v. Whitepages Inc.,44 the plaintiffs claimed that Whitepages violated Illinois’s right of publicity statute by using free previews of identifying information to encourage users to pay for monthly subscription-based access to full background reports. While the court arrived at § 230’s inapplicability on other grounds, it might as well have conceded § 230’s limitation to the right of publicity.

Zeran rightfully held that § 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”45 If the goal then is to continue to preserve § 230’s tremendous cost-saving, innovative, and speech-friendly benefits, then the same should result for publicity rights claims arising out of third-party, user-generated violations. So far, § 230 has enabled internet companies to avert creative work-arounds by restitution-seeking plaintiffs. But what if the right of publicity is the Easter egg that cracks the immunity’s shield? Perhaps, then, they might succeed where Zeran failed.


1. Telecommunications Act of 1996, Pub. L. No. 104-104, § 509, 110 Stat. 56, 137–39 (codified at 47 U.S.C. § 230).

2. 47 U.S.C. § 230(c)(1) (“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.”).

3. See generally Jeff Kosseff, The Twenty-Six Words That Created the Internet (2019).

4. See Eric Goldman, Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope, Balkinization (June 3, 2019),

5. See Eric Goldman & Jessica Silbey, Copyright’s Memory Hole, 2019 BYU L. Rev. 929 (2020).

6. 202 F.2d 866, 868 (2d Cir. 1953).

7. See William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960) (stating that the right of publicity encompasses “[a]ppropriation, for defendant’s advantage, of the plaintiff’s name or likeness”).

8. See, e.g., Montgomery v. Montgomery, 60 S.W.3d 524, 528 (Ky. 2001) (“The common-law right of publicity evolved from the appropriation prong of the right of privacy. But ‘it is a distinct cause of action intended to vindicate different interests.’” (footnote omitted)).

9. See generally 1 J. Thomas McCarthy, The Rights of Publicity and Privacy (2d ed. 2009).

10. See Charles F. Morgan, Publicity Rights Uncertainty Makes Maryland a Risky Place for Celebrities to Live or Die, Astrachan Gunst Thomas (2007),

11. See Dustin Marlan, Unmasking the Right of Publicity, 71 Hastings L.J. 419 (2020).

12. See, e.g., Okla. Stat. tit. 12, § 1448; Okla. Stat. tit. 21, § 839.1. Oklahoma law does not reserve the right of publicity for celebrities as long as the plaintiff or identity holder is alive. However, postmortem rights are only available for celebrities.

13. 47 U.S.C. § 230(e)(2) (“Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”).

14. 488 F.3d 1102, 1118–19 (9th Cir. 2007).

15. See 4 Ian C. Ballon, E-Commerce & Internet Law: Treatise with Forms § 37.05[5][B] (2d ed. 2020 update).

16. Id.

17. 339 F.3d 1119 (9th Cir. 2003).

18. 456 F.3d 1316, 1324 (11th Cir. 2006).

19. 129 F.3d 327 (4th Cir. 1997).

20. 540 F. Supp. 2d 288 (D.N.H. 2008).

21. Id. at 291–92.

22. See Restatement (Second) of Torts §§ 652A–652E (Am. Law Inst. 1977).

23. 304 U.S. 64 (1938).

24. 313 U.S. 487 (1941).

25. 28 U.S.C. § 1404.

26. Wash. Rev. Code § 63.60.010.

27. Id. § 63.60.050.

28. See, e.g., Lewis v. Physicians & Dentists Credit Bureau, 117 P.2d 896 (Wash. 1947); State ex rel. LaFollette v. Hinkle, 229 P. 317 (Wash. 1924).

29. Wash. Rev. Code § 63.60.010.

30. Va. Code Ann. §§ 8.01-40, 18.2-216.1.

31. Id. § 8.01-40.

32. Okla. Stat. tit. 12, §§ 1448–1449; Okla. Stat. tit. 21, §§ 839.1, 839.2, 8391.1A.

33. See Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996).

34. No. 2:07-cv-0354, 2008 WL 472433 (S.D. W. Va. Feb. 19, 2008).

35. See 4 Ballon, supra note 15, § 37.05[5][B] (enumerating cases).

36. See Eric Goldman, Why Section 230 Is Better Than the First Amendment, 95 Notre Dame L. Rev. Reflection 33 (2019).

37. See 4 Ballon, supra note 15, § 37.05[1][C].

38. See, e.g., Twitter, Inc. v. Superior Court, No. A154973, 2018 WL 516706, at *4 (Cal. Ct. App. Aug. 17, 2018).

39. See Goldman, Why Section 230 Is Better Than the First Amendment, supra note 36.

40. See Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983).

41. See White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1514 (9th Cir. 1993).

42. Restatement (Second) of Torts § 652C (Am. Law Inst. 1977).

43. No. A148623, 2017 WL 3404767 (Cal. Ct. App. Aug. 9, 2017).

44. No. 19 C 4871, 2020 WL 1888916 (N.D. Ill. Apr. 16, 2020).

45. Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

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Jess Miers is a third-year law student at Santa Clara University School of Law, studying internet law, content moderation, and § 230.

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky College of Law.


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.