In the United States, Internet Service Providers and web sites aren’t held legally responsible for the content that flows through their pipes or hosted on their servers; it’s a protection granted to them by Congress under Sec. 230 of the Communications Decency Act. 

That immunity is the framework that allows the Internet to thrive as a haven for innovative services and free expression.  Without this immunity sites that depend on user content provided risk becoming overly restrictive, timid, and forced to laboriously scrutinize every single posting.  These nascent sites that have become part of our everyday lexicon would be quickly shelved, along with every other “good idea,” that never quite made it.  But now there are cracks in that immunity.

A federal judge in New Hampshire, for example, allowed a woman to sue an adult oriented web site on the allegation that someone posted a fake profile of her online.  The fake persona, the woman claims, violated her “right to publicity.”

The New Hampshire ruling declared that the “right to publicity” is a kind of intellectual property right.  That’s a problem because the immunity provided online services doesn’t extend to “any law pertaining to intellectual property,” the statue says.

The New Hampshire court cited a federal appeals court that said there is “no dispute” that the right to publicity is “a type of intellectual property right.”  Crack.  The “right to publicity,” is generally held to be the right to control how one’s name, likeness or picture is used and to prevent unauthorized commercial use. 

But is that what Congress really intended when it carved out intellectual property exception?  We don’t think it should. The best reading consistent with Congress’s intent, was that the immunity was supposed to be broad and the exception narrow, meant only to corral the “big three” of intellectual property: copyright, trademark and patent rights.

If the right to publicity is considered an “intellectual property” right it means an innumerable number of web sites could be open to legal torrent of liability for content they didn’t create.  The chilling effect on the Internet would be catastrophic.  To be sure, the woman involved suffered embarrassment and anxiety, two elements of the “right to publicity” and she should be able to sue the poster of the message. But to permit an action against the site would force Internet sites to review and determine the veracity of each and every posting.

If the case is appealed, let’s hope the court has the foresight to overrule the lower court.  Allowing the New Hampshire decision to stand will significantly weaken the wall of immunity online services currently enjoy.  And in an era when the Internet is under constant attack, we can’t afford weakness of any kind.