Facebook Asks 3rd Circuit to Review Decision in Complex Section 230 Case

Facebook Asks 3rd Circuit to Review Decision in Complex Section 230 Case

PHILADELPHIA — Facebook asked the full Third Circuit Court of Appeals on Thursday to review last month’s split-panel decision allowing a complex intellectual property and “right of publicity” lawsuit — which challenges Section 230 protections over third-party content and also mentions adult conglomerate WGCZ as co-defendant — to move forward.

The lawsuit, known as Hepp v. Facebook, was originally filed by Philadelphia Fox 29 news anchor Karen Hepp in September 2019, a year after she was "told by coworkers that her photograph was making its way around the internet,” court documents indicate.

“The image depicts Hepp in a convenience store, smiling in the center of the frame’s foreground. But the photograph was taken without Hepp’s knowledge or consent. She knows neither the convenience store’s location nor how the image was posted online. And she never authorized the image to be used in online advertisements for erectile dysfunction and dating websites.”

Hepp’s lawsuit, the filing continues, “included two sets of posts featuring her photograph. She alleged each violated her right of publicity under Pennsylvania law.”

She “seeks to hold liable sites on which her image appeared without her consent on advertisements for a dating app and an erectile dysfunction treatment, and for promoting pornography,” legal news site Law360 reported last week.

Facebook: Decision Fosters 'Speech-Chilling Uncertainty'

Hepp is suing Facebook, Reddit, image-sharing platform Imgur and WGCZ, the European conglomerate behind XVideos, Penthouse and several other adult products and brands, including one of the websites mentioned in the suit.

Last month, a panel of Third Circuit judges reversed a lower court decision, authorizing Hepp’s lawsuit to move forward.

Facebook has now requested an “en banc” review of the panel’s decision, weighing in the opinions of the full Third Circuit.

Facebook, Law360 reported, “slammed the majority's decision for introducing ‘speech-chilling uncertainty’ and argued that it forces other courts to figure out if ‘state-law torts qualify as intellectual property laws.’”

"The majority decision now invites litigants to sidestep [Section 230] and its immunity by repackaging claims as state-law intellectual property claims," the Facebook attorneys argued. "Plaintiffs will have ample incentives to do so, and courts will have precious few tools to divine whether a state law is an intellectual property law or something else, because, unlike Congress, states have no reason to label their laws as such."

In August 2020, before Hepp appealed to the Third Circuit, a district court released WGCZ from the lawsuit, “siding with its argument that it had no longer owned or operated [the site in question] when Hepp sued in September 2019,” Law360 explained.

The cases are Hepp v. Facebook et al., case numbers 20-2725 and 20-2885, in the U.S. Court of Appeals for the Third Circuit.

Main Image: The dating site ad featuring Karen Hepp's image (Source: Hepp v. Facebook)

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