PHILADELPHIA – Counsel for a local television news anchor who sued a series of social media entities for an alleged improper use of her image across the Internet argued to the U.S. Court of Appeals for the Third Circuit that the case should proceed, despite a federal law which prevents lawsuits against third-party providers of online content.
“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, 2019, 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.
U.S. District Court for the Eastern District of Pennsylvania John M. Younge granted motions for dismissal for several of the named companies, based upon Section 230 of the Communications Decency Act – which notes that third-party Internet content providers cannot be sued.
UPDATE
Hepp and her counsel appealed to the Third Circuit last August, participated in arguments before panel judges Thomas M. Hardiman, Peter J. Phipps and Robert E. Cowen on June 2.
Hepp’s counsel argued that Younge’s dismissal ruling from the District Court was in error, and that Hepp used creative and intellectual powers to create her public image via her professional persona on the air.
This point was the crux of plaintiff counsel Samuel Fineman’s argument that Hepp’s position was based in state law intellectual property rights – which would also serve as an exception to Section 230 of the Communications Decency Act, and allow her case to move forward.
Fineman compared Hepp to a professional athlete whose image has monetary value, a point of view which Hardiman did not share. Hardiman felt such matter could be considered property, but not of the intellectual variety.
Fineman disagreed, contending that professional sports leagues who earn revenue from the images of professional athletes would feel differently.
Meanwhile, attorneys for the defendant companies countered that the Third Circuit had no jurisdiction in the matter and that Hepp’s claims did not sound in intellectual property law.
Rather, the defense argued that Hepp’s claims originate from a right to privacy and that Pennsylvania has never recognized a right to publicity apart from privacy rights in its law.
Hepp seeks damages in excess of $10 million.
U.S. Court of Appeals for the Third Circuit case 20-2885
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