Facebook will press a federal appeals court to reconsider its recent decision allowing Philadelphia news anchor Karen Hepp to proceed with a claim that the company misappropriated her identity by hosting dating ads with her photo, the company said in court papers.
The ruling -- which the digital rights group Electronic Frontier Foundation calls “disastrous” for online speech -- revived a 2019 lawsuit filed by Hepp, co-anchor of “Good Day Philadelphia.”
Her complaint alleged that a security photo of her, which was taken at a New York City convenience store, was being used in ads running on Facebook for the dating site FirstMet.
Hepp claimed Facebook's display of those ads violated Pennsylvania's “right of publicity” law -- which gives people the right to wield control over how their names or photos are used in advertising.
Facebook argued that it was protected from Hepp's lawsuit by Section 230 of the Communications Decency Act, which immunizes websites from liability for content posted by third parties. But that law, while broad, has some exceptions -- including for material that infringes intellectual property.
Facebook argued that the exception should only apply when users post material that infringes a federal intellectual property right -- such as federal copyright or trademark rights -- but not when material violates a state intellectual property law.
In a 2-1 ruling issued last month, the 3rd Circuit Court of Appeals sided against Facebook and ruled that Hepp's “right of publicity” claim fell within that intellectual property exemption.
Circuit Judge Robert Cowen, who dissented, said the ruling could spur web companies to restrict protected speech, in order to limit their exposure to lawsuits.
He said the decision leaves internet service providers facing the prospect of liability under laws that “vary widely from state to state.”
“Such uncertainty as well as the probability of additional litigation in the future together with the real possibility of being held liable under disparate and often very expansive state law 'intellectual property' regimes would encourage internet service providers to censor more content,” he wrote.
The Electronic Frontier Foundation, which previously sided with Facebook in a friend-of-the-court brief, said Tuesday that the ruling “drastically undermines online speech.”
The group noted that state “right of publicity” laws vary widely, which could spur online intermediaries to curb users ability to post content.
“In California, publicity rights protections apply to virtually anything that evokes a person, and last for 70 years after the death of that person. In Virginia, a publicity rights violation can result in criminal penalties,” the group writes. “Faced with a panoply of standards, email providers, social media platforms, and any site that supports user-generated content will be forced to tailor their sites and procedures to ensure compliance with the most restrictive state law, or risk liability and potentially devastating litigation costs.”
Facebook's request for reconsideration is due by October 21.