Major social media companies, including Facebook and Reddit, are seeking to dismiss the lawsuit that Fox 29 anchor Karen Hepp has filed, alleging the companies allowed an image of her to be used on a dating website and erectile dysfunction advertisements without her consent. The dispute raises several unsettled issues about the potential liability of online content providers.
On Monday, Facebook, Reddit and GIPHY filed briefs outlining why the case Hepp v. Facebook should be dismissed. The lawsuit is pending in the U.S. District Court for the Eastern District of Pennsylvania before Judge John M. Younge.
Hepp, who is the co-anchor of the network’s popular “Good Day Philadelphia” morning show, sued the companies, along with Imgur, alleging they violated the state’s right to publicity statute and the corresponding common law. The defendants, however, have argued, among other things, that they are immune from suit under the federal Communications Decency Act, which generally provides immunity for online publishers, and now the dispute has turned, in large part, to the question of whether the CDA includes a specific exception for those alleging their intellectual property rights have been violated.
Hepp has pointed to Section 230(e)(2) of the CDA, which says that the law should not be seen as applying to intellectual property, and argued that the U.S. Courts of Appeal for both the First and Second circuits agree. The anchor also contended that the court should evaluate the case based on her status as a celebrity who makes a living off her image, making it a clear issue of intellectual property and distinguishing it from some case law in the district. But, citing case law from the U.S. Court of Appeals for the Ninth Circuit, the defendants have countered that the exception only applies to federal intellectual property cases, rather than ones stemming from state law claims. Facebook has further contended that the fame issue had no bearing on the case.
Those questions, however, raise issues that the Third Circuit has not squarely ruled on.
Cohen Fineman’s Samuel Fineman said the case raises novel issues and could prove to be a “watershed” if it ever comes before the Third Circuit.
“It’s really important,” Fineman said. “The facts are perfect, because it truly involves a celebrity and a monetized right of publicity.”
Dennis Wilson of Kilpatrick Townsend & Stockton is representing Facebook. Philadelphia attorney Michael LiPuma is representing Imgur. Aditya Kamdar of Durie Tangri is representing Reddit, and Joshua Stein of Boies Schiller Flexner is representing GIPHY.
Stein declined to comment. None of the other attorneys returned a call seeking comment.
According to Hepp’s complaint, which was filed in September, the image in question was surreptitiously taken by a convenience store security camera in New York City approximately two years ago. Hepp claims to not remember the exact name and location of the business or how the picture was disseminated. Since then, the picture has appeared on ads offering the ability to “meet and chat with single women,” including one advertisement in which Hepp appeared under the heading “milf.”
In one instance, “The photo was modified and featured on Giphy wherein a video appears in the background of a man—who is hiding behind a glass commercial freezer door and masturbating —to what would appear to be from his perspective the backside of the plaintiff,” the complaint said. The suit further claims that Hepp’s picture also appeared on a pornographic website.
According to the complaint, Hepp learned of the use of her image without permission when her Fox 29 co-workers alerted her.
After Hepp filed an amended complaint last month, the defendants filed motions to dismiss. Hepp challenged those filings, and the defendants filed reply briefs further detailing their arguments Monday.
Along with raising immunity claims, the defendants have challenged the Eastern District’s jurisdiction and argued the case was filed outside the statute of limitations.
Hepp has contended that the core function of the companies occurred in Pennsylvania, since the business model for social media companies involves people accessing and browsing their site. But, in its motion to dismiss Reddit argued that none of the alleged conduct was targeted at Pennsylvania, specifically, and so the state has no specific jurisdiction.
“Reddit does not deny that it has some contacts with Pennsylvania, but plaintiff has failed to plausibly allege—either in her amended complaint or her opposition—that these contacts have any relation to her causes of action,” Reddit said in its brief filed Monday.
Fineman said the jurisdiction dispute also raises some novel claims about how the courts should treat companies whose sole focus is social media.
“When a website’s sole purpose is to interact with users and consumers in the forum, doesn’t that show a high degree of interactivity?” Fineman said. “Use [the guidance outlined in] Zippo [Manufacturing v. Zippo Dot Com] but look at their prime activities. how do they make money?”