A recent court ruling that revived WTFX -28 Philadelphia news anchor Karen Hepp's lawsuit against Facebook will have “far-reaching consequences,” including a chilling effect on online speech, Facebook argues in papers filed this past Thursday with a federal appellate court.
Mediapost reports the decision, issued last month by a panel of the 3rd Circuit Court of Appeals, “invites costly litigation for online platforms based on content posted by third parties,” Facebook writes in a motion asking to reargue the case before all of the judges in the circuit.
The company's new papers come in a battle dating to 2019, when Hepp, co-anchor of the morning show "Good Day Philadelphia," alleged in a federal complaint that a security photo of her taken at a New York City convenience store was being used in ads running on Facebook for the dating site FirstMet.
She claimed Facebook was violating Pennsylvania's “right of publicity” law -- which gives people the right to wield control over how their names or photos are used in ads.
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| Karen Hepp |
That law, while broad, has some exceptions -- including one for content that infringes someone's intellectual property.
Hepp appealed, arguing that her claim wasn't barred by Section 230 because Pennsylvania's right of publicity law protected her intellectual property -- namely, her right to control her likeness.
Facebook countered that Section 230's exception for intellectual property claims only applies to claims made under federal law, or under state laws that directly overlap with their federal counterpart. Pennsylvania's right of publicity law has no federal equivalent.
Facebook also argued that Pennsylvania's right of publicity law isn't an intellectual property law, because it's aimed at protecting state residents' privacy interests.
In a 2-1 decision, a 3rd Circuit Court of Appeals panel sided with Hepp, ruling that her right of publicity claim fell within Section 230's exemption for intellectual property laws.
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