The Fox 29 anchor had sued the Internet giants after a photo of her was used online without her permission.
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When we first broke the news last September that Fox 29 anchor Karen Hepp had sued Facebook, Reddit and other Internet companies for $10 million after a photo of her was used on multiple websites and platforms without her permission, there were, essentially, two schools of thought.
On the one hand, you had the people championing her for taking on these industry giants in an era when we are (or at least when we should be) more concerned about digital privacy than ever. “Good for her,” wrote one reader. “This kind of bullshit needs to stop.”
On the other hand, you had the people who said that the case would go nowhere. “She has no chance,” opined one such reader.
Well, the latter school of thought just won out. At least for now.
Last week, federal judge John Milton Younge tossed the case. There were lots of complicated motions and memorandums and legal blah blah blah filed over the last 11 months. So let me summarize.
In her complaint, the 50-year-old Merion Station resident explained that she became aware that a photo of her, which was apparently taken inside a convenience store in New York, was being used online without her permission. Specifically, the photo appeared in an ad on Facebook for a dating site that encouraged users to click to “meet and chat with single women.” Then there were the pornographic sections on Imgur and Reddit, where the photo turned up as well. On Giphy, somebody with too much time on their hands manipulated the image to show a man masturbating behind Hepp. And the photo was also used in an ad for erectile dysfunction.
Embarrassing, right? Even more so considering that she only became aware of this when some of her colleagues and members of Fox 29 management saw the images and reported them to her.
In the lawsuit, Hepp tried to avail herself of a law known as “right of publicity.” That law basically says that a business is not allowed to take the name or likeness of a person who has clear commercial value and use it for commercial purposes without said person’s permission. So you couldn’t just open a cheesesteak shop called Big Will’s and stick a giant neon statue of Will Smith eating one of your cheesesteaks on top of the shop in order to sell more cheesesteaks. At least, not without Smith’s permission. That’s pretty clear.
And the right of publicity doesn’t just apply to photos. Bette Midler famously sued Ford after the carmaker hired one of Midler’s backup singers to be a Midler soundalike in a commercial voiceover that Midler herself had declined to do. Midler eventually won on appeal.
Where it gets murky is when we’re talking about social media platforms and websites where users provide content.
Thanks to Section 230 of something from 1996 called the Communications Decency Act (CDA), an “interactive computer service” has immunity when it comes to content posted on it by “third-party users.” That’s why you probably can’t sue the Inquirer if somebody posts negative information about you in the comments section of a story. You could go after the commenter. But the CDA protects the Inquirer.
And in Hepp’s case, it’s not like Facebook itself intentionally and willfully posted Hepp’s photo without her permission. Some dating app used her photo in an ad that wound up on Facebook via some bot or Internet ad service. Clearly content from a third-party user.
But not so fast, argued Hepp’s attorney, Samuel Fineman of Cherry Hill. Fineman’s interpretation of the CDA held that the CDA actually provides an exception for right of publicity claims, something that other federal courts around the country have disagreed with. And in this case, so did the judge in the Hepp decision.
That said, the matter has never been tested in the Third Circuit Court of Appeals, the federal court that covers Pennsylvania, New Jersey and Delaware. And so Fineman is preparing just that, an appeal. He expects to file it later this month.
“This was simply not the right decision for this circuit,” Fineman tells Philly Mag. “We think this is an incredibly important issue for broadcasters, NFL players, MLB players — any public professional who trades on their fame. Whether you are Joel Embiid or Kevin Bacon or Karen Hepp, you have an interest in your own visage.”
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