• by Wendy Davis  @wendyndavis, April 25, 2022

In a blow to Facebook, a federal judge rejected as premature the company's request to dismiss Philadelphia news anchor Karen Hepp's lawsuit over the use of her photo in an ad on the platform.

Hepp, co-anchor of the morning show "Good Day Philadelphia,"  alleged in a 2019 lawsuit that an ad for the FirstMet dating app misappropriated her identity by showing a photo of her. The photo was apparently taken by a security camera at a New York City convenience store.

Facebook countered that even if Hepp proved her allegations, they would show only that FirstMet violated her right to control the use of her image -- and not that Facebook itself violated her rights, or even knew that she hadn't approved of the use of her image.

Hepp “is not pursuing her claims against the intentional distributor of her image, but against a passive platform that had no actual knowledge of and gained no benefit from FirstMet’s use” of her image, Facebook write in papers filed last month with U.S. District Court Judge John Younge in Philadelphia.

In a ruling issued Friday, Younge indicated the outcome of the lawsuit would hinge on open factual questions.

“Without discovery and the opportunity to develop evidence, the issue of whether defendant had 'actual knowledge' or used plaintiff’s image for 'commercial purposes' is an open question,” Younge wrote.

Earlier in the proceedings, Facebook argued the lawsuit should be dismissed because Section 230 of the Communications Decency Act protects web companies from lawsuits over material created by third parties.

Facebook initially prevailed with that argument, but Hepp appealed to the 3rd Circuit Court of Appeals, which reinstated her claims. The appellate court said in a 2021 ruling that Hepp's claims fell within an exception to Section 230.

While Section 230 is broad, it has has some exceptions -- including one for content that infringes someone's intellectual property. The 3rd Circuit said in a 2-1 ruling that Hepp's claim for misappropriation of her image in a type of intellectual property claim, and therefore not covered by Section 230.