• by Wendy Davis  @wendyndavis, October 22, 2021

A recent court ruling that revived Philadelphia news anchor Karen Hepp's lawsuit against Facebook will have “far-reaching consequences,” including a chilling effect on online speech, Facebook argues in papers filed Thursday with a federal appellate court.

The decision, issued last month by a panel of the 3rd Circuit Court of Appeals, “invites costly litigation for online platforms based on content posted by third parties,” Facebook writes in a motion asking to reargue the case before all of the judges in the circuit.

The company's new papers come in a battle dating to 2019, when Hepp, co-anchor of the morning show "Good Day Philadelphia," alleged in a federal complaint that a security photo of her taken at a New York City convenience store was being used in ads running on Facebook for the dating site FirstMet.

She claimed Facebook was violating Pennsylvania's “right of publicity” law -- which gives people the right to wield control over how their names or photos are used in ads.

U.S. District Court Judge John Younge in Philadelphia dismissed Hepp's lawsuit last year, ruling that Facebook was protected by Section 230 of the Communications Decency Act, which immunizes companies from liability for material posted by third parties.

That law, while broad, has some exceptions -- including one for content that infringes someone's intellectual property.

Hepp appealed, arguing that her claim wasn't barred by Section 230 because Pennsylvania's right of publicity law protected her intellectual property -- namely, her right to control her likeness.

Facebook countered that Section 230's exception for intellectual property claims only applies to claims made under federal law, or under state laws that directly overlap with their federal counterpart. Pennsylvania's right of publicity law has no federal equivalent.

Facebook also argued that Pennsylvania's right of publicity law isn't an intellectual property law, because it's aimed at protecting state residents' privacy interests.

In a 2-1 decision, a 3rd Circuit Court of Appeals panel sided with Hepp, ruling that her right of publicity claim fell within Section 230's exemption for intellectual property laws.

Circuit Judge Robert Cowen dissented, writing that the majority's decision could spur web companies to restrict protected speech, in order to limit their exposure to lawsuits.

He said the decision leaves web companies 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.

Facebook makes a similar argument in its motion for a new hearing. The company argues that the original ruling could spur other litigants to attempt an end-run around Section 230 by framing their complaints as “right of publicity” claims.

“The panel majority’s decision gives plaintiffs every incentive to dress up run-of-the mill claims otherwise barred by Section 230, like defamation, negligence, false light, and intentional infliction of emotional distress, as state-law right-of-publicity claims, thereby defeating Congress’ basic intent in enacting Section 230,” Facebook writes.

“The inevitable result is that some claims Congress intended to preclude will proceed, contrary to Congress’ judgment,” the company adds. “This decision will in turn chill speech as online forums for third-party content grapple with the unintended and potentially far-reaching consequences of this ruling.”

The digital rights group Electronic Frontier Foundation said last month that the panel's ruling against Facebook “drastically undermines online speech.”

That organization said state “right of publicity” laws vary widely, which could spur online intermediaries to curb users ability to post content.

“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,” the digital rights organization said.