Facebook seeks to quash news anchor’s photograph lawsuit
Facebook has requested an en banc rehearing in a lawsuit filed by a US TV anchor over an unauthorised photograph, arguing that a law shields the tech company from such claims.
Facebook lodged the filing on October 21, 2021, arguing that the US Court of Appeal for the Third Circuit misinterpreted the statute, Section 230(c) Communications Decency Act (CDA), 47 U.S.C. § 230, when it ruled against Facebook in September.
The dispute arose when Karen Hepp, a morning show presenter on Philadelphia’s Fox subsidiary, WTXF, was caught on a convenience store security camera unaware in 2017, and the photograph then featured on various social media platforms.
On Facebook, the photograph was used in an advertisement for the dating service FirstMet, alongside a message inviting users to “meet and chat with single women.”
When the image appeared on social media platform Reddit and the image-hosting service Imgur, Hepp was subjected to derogatory commentary about her appearance.
Hepp sued Facebook, Reddit and Imgur, alleging that the unauthorised use of the photograph contravened statutory and common law right of publicity laws.
She also argued that the use of the photographs has caused serious, permanent and irreparable harm to her reputation and career.
Facebook, Reddit and Imgur hit back at the claims, holding that they were immunised from the claim due to the provisions contained in the CDA enacted by Congress back in 1996. According to the companies, this statute provides that internet service providers shall not be “treated as the publisher or speaker of any information provided by another information content provider.”
But last month, the Third Circuit ruled that the tech companies were not protected by this law, diverging from an earlier Ninth Circuit opinion holding that they were immune from these types of claims.
In its petition for an en banc review, Facebook said: “The panel’s ruling is not only wrong but forces courts to determine which state-law torts qualify as IP laws. It also invites costly litigation for online platforms based on content posted by third parties, contrary to Congress’ judgment.”
It also held that both the plain text of the IP exception and the broader structure of the statute make clear that only federal intellectual property claims are exception to Section 230. “No act of Congress,including §230(c)(1), could expand state law, showing that Congress’ focus was federal IP law (which Congress could expand but wanted to leave unaffected),” said the filing.
Facebook also warned that the panel majority’s decision gives plaintiffs every incentive to “dress up run-of-the mill claims otherwise barred by the statute” such as defamation, negligence, false light, and intentional infliction of emotional distress, as state-law right-of-publicity claims, which would defeat Congress’ basic intent.
Courts would also now face the unenviable task of determining what state laws “pertain to IP” with few tools to make that assessment, contended Facebook.
