A federal appeals court has revived a Philadelphia newscaster’s lawsuit against Facebook over the unauthorized use of her image in advertisements for dating sites and sex-related products that ran on the site
A divided panel concluded that Facebook is not immune from Fox 29 host Karen Hepp’s claim that the advertisements violated her right to control her public image and reputation.
U.S. Circuit Judge Thomas Hardiman, writing for the 2-1 majority, said the suit falls under the narrow carveout for intellectual property claims under Section 230 of the Communications Decency Act. The act largely protects internet providers from liability for third-party content.
However, Hepp argued that she is a public figure whose image was used to sell what she called “prurient” goods and services on Facebook without permission or compensation.
The case is being closely watched by interest groups on both sides, and could reach the U.S. Supreme Court given its split with a ruling on the issue from the Ninth U.S. Circuit in San Francisco.
The Electronic Frontier Foundation and other free-speech groups filed an amicus brief in support of Facebook in the case, while the Screen Actors Guild filed one in support of Hepp.
“In the twenty-five years since the Communications Decency Act was passed, there are precious few cases interpreting Section 230’s intellectual property provision,” Hardiman wrote.
His panel concluded that the carveout includes not just federal intellectual property laws, as the Ninth Circuit had found, but state claims like Hepp’s as well.
“Facebook is right to argue that 230 seeks to promote a free exchange of ideas on the internet,” Hardiman wrote. ”(But) simply put, a state law can be a ‘law pertaining to intellectual property,’ too.”
The case will now go back to the lower court, unless Facebook appeals or asks for a rehearing. Washington-based lawyer Craig Primus, who argued the case for Facebook, did not immediately return a call for comment.
The panel agreed with a lower court that Hepp cannot pursue similar claims against Reddit or the photo-sharing site Imgur in Pennsylvania because there’s no evidence it was part of their business activities in the state. Facebook chose not to challenge the jurisdictional issue, leaving itself to defend the suit.
The photograph appears to have come from a security camera at a New York convenience store several years ago, when Hepp worked for WNYW-TV. She is currently a morning host for Fox29 in Philadelphia. Her lawyers believe it found its way to an online clearinghouse where images can be downloaded, sometimes for a fee.
“Because she wasn’t paid, that’s a violation of her right of publicity,” lawyer Samuel Fineman said Thursday.
“She has a brand. Not only is she an anchor on Fox, but there’s a monetary value in her face” based on her social media following, Fineman said. The ads, he said, “don’t fit with her persona and brand.”
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