PHILADELPHIA – Facebook, Reddit and Imgur have collectively been dismissed from a lawsuit brought by a local television news anchor suing for allegedly improper use of her image on commercial websites across the Internet, per order of a federal judge in Philadelphia.
“Good Day Philadelphia” anchor Karen Hepp has taken issue with social sites like Facebook and Reddit for featuring an image taken without her knowledge on several commercial websites, including one on an ad for erectile dysfunction.
Hepp first filed her complaint in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 4, suing Facebook, Imgur, Reddit, Giphy, WGCZ S.R.O. and the owners of various websites and media outlets, named in the lawsuit as Does 1-10, for alleged violation of the state’s Right of Publicity statute.
Hepp alleged that her co-workers informed her two years ago that a security camera caught a snapshot of her in a New York City convenience store. That photo is said to have been used in online ads for erectile dysfunction as well as dating websites and other avenues, according to the lawsuit.
The picture was also included in a Facebook ad that implored users to “meet and chat with single women,” based on the complaint. Imgur allegedly posted the photo with the word “milf,” an inappropriate term related to attractive women with kids.
Reddit allegedly featured the photo in a subgroup called r/obsf.
Hepp also alleged, “The photo was modified and featured on Giphy wherein a video appears in the background of a man – who is hiding behind a glass commercial freezer door and masturbating – to what would appear, from his perspective, to the backside of the plaintiff.”
Lastly, the picture also made its rounds on XNXX in the “milf” gallery.
Hepp asked the court to bar the defendants and their related entities from publishing the photo, and to make them remove the ones that are currently present on their sites. She also wants the defendants to have to show how much money they made from using her image.
Several of the defendants have motioned to have themselves dismissed from the case. One of them, Imgur, took such action when it filed a response dismissal motion for lack of jurisdiction on Jan. 24.
“The claims against Imgur must be dismissed for lack of personal jurisdiction because there is no basis for a Pennsylvania court to exercise either general or specific jurisdiction over Imgur in this matter,” read the motion from Imgur’s counsel, Michael D. LiPuma.
Giphy, Inc., Reddit and Facebook filed similar motions to dismiss shortly thereafter – with Giphy citing a lack of personal jurisdiction, Section 230 of the Communications Decency Act and the case being time-barred by the two-year statute of limitations, before it was dismissed from the suit on May 13.
U.S. District Court Judge John M. Younge concurred with Imgur, Reddit and Facebook’s requests seeking to be dismissed from the case in a June 5 ruling, also citing the CDA.
Younge said the case “presents an issue of first impression not yet decided by our Third Circuit – whether CDA immunity extends to cases alleging infringement by an internet service provider in violation of the various and differing state right of publicity laws.”
“The elements required for Section 230(c) immunity are: (1) That the defendant is a provider or user of an ‘interactive computer service;’ (2) That the asserted claims treat the defendant as the publisher or speaker of the information; and (3) That the information is provided by another ‘information content provider,” Younge stated.
“Here, Plaintiff does not explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e., postings, advertisements, and short-looping videos that utilized plaintiff’s image). Rather, it is reasonable to infer from the allegations in the amended complaint, and the exhibits attached thereto, that defendants merely allowed the offending content to be posted on their respective platforms via third-party users.”
Younge added because Hepp’s claims are premised on third party-posted content that were hosted on each defendants’ respective platforms, these claims are not actionable under Section 230 of the CDA.
Lastly, Younge found that only federal intellectual property claims are excluded from the scope of CDA immunity, and for this reason, Hepp’s statutory and common law right of publicity claims under state law are also barred by Section 230(c) of the CDA.
For counts of violating the Pennsylvania Constitution and the Right to Publicity statute, the plaintiff is seeking a yet-to-be precisely determined award in excess of $10 million.
The plaintiff is represented by Samuel B. Fineman of Cohen Fineman in Cherry Hill, N.J.
The defendants are represented by Dennis Wilson and Tywanda Harris Lord of Kilpatrick Stockton in Beverly Hills, Calif. and Atlanta; Aditya V. Kamdar, Joseph C. Gratz and Vera Ranieri of Durie Tangri in San Francisco; Barry L. Cohen of Royer Cooper Cohen Braunfeld; Michael D. LiPuma of LiPuma Law; Bonnie M. Hoffman and Thomas Nelson Brown of Hangley Aronchick Segal Pudlin & Schiller; Daniel Gross and Samuel W. Silver of Schnader Harrison Segal & Lewis, all in Philadelphia; plus Michael Zeller and Rachel Kassabian of Quinn Emmanuel Urquhart & Sullivan in Los Angeles and Redwood Shores, Calif.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-04034
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com