PHILADELPHIA – A local television news anchor who brought suit for an alleged improper use of her image on commercial websites across the Internet has seen her case dismissed by a Philadelphia federal judge.
“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 wanted 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.
Giphy, Inc., Reddit and Facebook filed similar motions to dismiss shortly thereafter – with Giphy alleging Hepp’s claims were prohibited by a lack of personal jurisdiction, Section 230 of the Communications Decency Act and were time-barred by the two-year statute of limitations, among other objections, before the company was successful in securing its dismissal motion last week.
Those motions to dismiss from Giphy, Reddit and Facebook proved successful on June 5.
On May 28, a notice of partial voluntary dismissal was filed by WGCZ, which asserted a similar argument to Imgur as to the court lacking jurisdiction over it in Pennsylvania, since it is a company based in the Czech Republic. Additionally, WGCZ said it has not owned or operated XNXX since 2014 and it is now operated by a company called NKL Associates.
As a result, Hepp filed on June 11 to have NKL Associates as a defendant in the action in place of WGCZ, plus add a count for successor liability.
UPDATE
On Aug. 3, U.S. District Court for the Eastern District of Pennsylvania John M. Younge dismissed WGCZ from the complaint with prejudice and denied the motion to substitute NKL Associates and add the count for successor liability, stating the Court lacked specific jurisdiction over WGCZ.
“Plaintiff’s jurisdictional arguments as to WGCZ lack merit for two related reasons. First, plaintiff fails to identify plausible allegations or evidence to suggest that XNXX.com was owned or operated by WGCZ when the allegedly offending conduct occurred,” Younge said.
“Plaintiff cannot establish specific jurisdiction as to WGCZ if it did not own or operate XNXX.com during the relevant time period because if it did not own or operate the site, WGCZ would not be responsible for purposely directing the offending content to Pennsylvania.”
Younge said it was important for the Court to examine “the level of interactivity and commercial nature of the exchange of information that occurs on the website.”
“A passive website that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction. The middle ground is occupied by interactive websites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website,” Younge said.
While counsel for Hepp argued WGCZ’s operation reached into Pennsylvania, Younge countered that its operation of other allegedly interactive websites does not support personal jurisdiction in this case, because “plaintiff’s claims do not arise out of and are not related to those alleged websites”, and therefore was not entitled to jurisdictional discovery on that point.
“WGCZ is a foreign defendant and it should not be subject to the burden of conducting unnecessary and costly discovery in the United States without some showing on the part of plaintiff that such discovery is warranted,” Younge said.
As a result of WGCZ being dismissed from the case, only John Doe defendants remained in the action. Younge cited federal case law in citing that an action against solely Doe defendants cannot proceed and dismissed the case in its entirety.
Prior to dismissal and for counts of violating the Pennsylvania Constitution and the Right to Publicity statute, the plaintiff was seeking a yet-to-be precisely determined award in excess of $10 million.
The plaintiff was represented by Samuel B. Fineman of Cohen Fineman in Cherry Hill, N.J.
Defendant WGCZ was represented by Daniel Gross and Samuel W. Silver of Schnader Harrison Segal & Lewis 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