US court relaunches lawsuit against Facebook over TV host image

PHILADELPHIA (AP) – A federal appeals court has relaunched a case against a Philadelphia presenter against Facebook for unauthorized use of his image in ads for dating sites and sex-related products featured on the site .

A divided panel concluded that Facebook was not immune to Fox 29 host Karen Hepp’s claim that the ads violated her right to control her public image and reputation.

U.S. Circuit Judge Thomas Hardiman, writing for the 2-1 majority, said the lawsuit fell under the narrow exclusion of intellectual property claims under Section 230 of the Communications Decency Act. The law largely protects Internet service providers from liability for third-party content.

However, Hepp has argued that she is a public figure whose image has been used to sell what she called “pure” goods and services on Facebook without permission or compensation.

The case is closely watched by interest groups on both sides and could reach the US Supreme Court given its split with a ruling on the issue of the US Ninth Circuit in San Francisco.

The Electronic Frontier Foundation and other free speech groups have filed an amicus case in favor of Facebook in this case, while the Screen Actors Guild has filed one in favor of Hepp.

“In the twenty-five years since the enactment of the Communications Decency Act, there have been a few rare instances of interpretation of the intellectual property provision of Section 230,” Hardiman wrote.

His panel concluded that the exclusion includes not only federal intellectual property laws, as the Ninth Circuit found, but also state claims like Hepp’s.

“Facebook is correct that 230 seeks to promote a free exchange of ideas on the Internet,” Hardiman wrote. “(But) in layman’s terms, a state law can also be an ‘intellectual property law’. “

The case will now be sent back to the lower court, unless Facebook appeals or requests a new hearing. Washington-based attorney Craig Primus, who has argued the case for Facebook, did not immediately respond to a call for comment.

The panel agreed with a lower court that Hepp cannot bring a similar lawsuit against Reddit or the photo-sharing site Imgur in Pennsylvania because there is no evidence that this was part of their business activities in the state. . Facebook chose not to contest the jurisdictional issue, allowing itself to be defended in the lawsuit.

The photograph appears to have come from a security camera at a convenience store in New York several years ago when Hepp was working for WNYW-TV. She is currently a morning host for Fox29 in Philadelphia. His lawyers believe it has found its way into an online clearinghouse where the images can be uploaded, sometimes for a fee.

“Because she was not paid, it is a violation of her right to publicize,” lawyer Samuel Fineman said Thursday.

“She has a mark. Not only is she an anchor on Fox, but there’s monetary value in her face, ”Fineman said. The ads, he said, “don’t match his personality and his brand.”

___ Follow Maryclaire Dale on Twitter at

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