• by Wendy Davis  @wendyndavis, November 1, 2021

A recent decision reviving news anchor Karen Hepp's claims against Facebook will cause other online services to stop allowing users to post content, a coalition of digital rights groups, libraries and other advocates say.

The decision, issued by a three-judge panel of the 3rd Circuit Court of Appeals, “requires online sites and services to adopt draconian measures or face financial ruin,” the Electronic Frontier Foundation, American Library Association, Public Knowledge and others write in a friend-of-the-court brief filed late last week.

The organizations add that many sites “will simply refuse to host user-generated content at all -- and we will all be the poorer for it.”

The groups are backing Facebook's request for a new hearing at the 3rd Circuit.

The battle between Hepp and Facebook dates to 2019, when Hepp, co-anchor of the morning show "Good Day Philadelphia," alleged that a security photo of her taken at a New York City convenience store was being used in ads appearing on Facebook for the dating site FirstMet.

She claimed Facebook violated 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, ruling that Facebook was protected by Section 230 of the Communications Decency Act, which protects companies from liability for material posted by third parties.

While that law is broad, it has some exceptions, including one for material that infringes someone's intellectual property.

Hepp appealed to the 3rd Circuit, where she argued that her “right of publicity” was a form of intellectual property -- namely, her right to control her image -- and therefore wasn't covered by Section 230.

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

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

The appellate panel sided with Hepp, ruling 2-1 that her right of publicity claim fell within Section 230's exemption for intellectual property laws.

The Electronic Frontier Foundation and other organizations agree with Facebook, writing that the right of publicity stems from privacy interests, not a form of intellectual property.

“The right dates back to the advent of instantaneous photography, which made it easy to capture a person’s image without consent and use it for commercial purposes,” the groups write. “Public outrage led to court decisions and statutes determining that the right to be let alone included the right to be free from 'unwarranted publicity.'”

The groups add that stripping websites of Section 230 protections for “right of publicity” claims would lead to a wave of litigation against online intermediaries.

They go on to provide a few examples of the types of lawsuits websites could face.

“A knitting site like Ravelry.com, which also has ads, would be unable to host users’ pictures of friends wearing the sweaters they have made,” the organizations contend.

“A news site, like Democratic Underground, would have to shut down its discussion forums, for fear its users might use a phrase associated with a celebrity incorrectly,” they add.

On Monday, Circuit Judge Thomas Hardiman officially accepted the friend-of-the-court brief. The court hasn't yet said whether it will re-hear the case.