Court Confirms Ruling Against Facebook In Battle Over News Anchor's Photo

In a defeat for Facebook, a federal appellate court on Wednesday refused to reconsider a recent ruling that revived news anchor Karen Hepp's lawsuit against the company over an ad that appeared on its service.

As is customary, the 3rd Circuit Court of Appeals didn't give a reason for its rejection of Facebook's request to revisit the case.

The court's move means that, absent Supreme Court intervention, the social media platform must now face allegations it violated Hepp's right to control the commercial use of her image by hosting ads with her photo.

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

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

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Facebook countered that it was protected by Section 230 of the Communications Decency Act. That law broadly immunizes companies from liability for material posted by third parties, but has some exceptions -- including one for third-party material that infringes intellectual property.

U.S. District Court Judge John Younge in Philadelphia agreed with Facebook and dismissed Hepp's lawsuit last year.

She then appealed to the 3rd Circuit, which revived her claims on the grounds that her “right of publicity” is a form of intellectual property.

Facebook recently asked that court to reconsider the ruling, arguing that the decision could spur other people who want to sue the company to frame 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 wrote in papers filed last month.

Advocacy groups including the Electronic Frontier Foundation, American Library Association, Public Knowledge supported Facebook's request in a friend-of-the-court brief.

The organizations wrote that the decision to allow Hepp to proceed will lead many websites to refuse to host user-generated content.

Facebook hasn't yet said whether it plans to ask the Supreme Court to review the ruling.

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