Karen Hepp v. Facebook, Inc.

District court dismisses news anchor’s right of publicity claims against Facebook and other websites, holding safe harbor for “interactive computer service” providers in Communications Decency Act protects defendants from liability, and exception to safe harbor for claims based on “any law pertaining to intellectual property” does not apply.

Plaintiff Karen Hepp, co-anchor of the 4 a.m. to 6 a.m. time slot of the Fox 29 morning news program Good Day Philadelphia, sued Facebook, Imgur and Reddit, asserting statutory and common-law right of publicity claims under Pennsylvania law. Hepp argued that third-party users had posted to defendants’ websites an unauthorized photo of her that had been taken without her consent by a security camera in a convenience store in New York City. The photo allegedly appeared in a Facebook advertisement soliciting users to “meet and chat with single women,” on Imgur under the heading “milf” (a “derogatory and degrading slang acronym that refers to a sexually attractive woman with young children”) and in the Reddit subgroup “r/obsf” (a shorthand for “older but still $#^@able”). Hepp claimed that distribution of the image caused “serious, permanent and irreparable harm” to her “reputation, brand and image” as a public figure.

Defendants moved to dismiss Hepp’s claims as barred by Sec. 230(c) of the Communications Decency Act (CDA), which creates a safe harbor that protects “interactive computer service” providers from liability for claims targeted at the dissemination of third-party content. Hepp countered that her claim falls within the exception to the CDA safe harbor set forth in Sec. 230(e)(2), which states that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” 

The district court first addressed the threshold question of whether defendants meet the criteria for immunity under the CDA, which requires “(1) that the defendant is a provider or user of an ‘interactive computer service’; (2) that the asserted claims treat the defendant as the publisher or speaker of the information; and (3) that the information is provided by another ‘information content provider.’” Hepp did not dispute, and the court agreed, that Facebook, Imgur and Reddit are all providers of “interactive computer services.” The court also held it was “reasonable to infer” from the allegations in Hepp’s amended complaint that she sought to treat each defendant as a “publisher or speaker” of third-party content that was hosted on their respective platforms. The court therefore held that defendants meet the criteria for immunity under Sec. 230(c).

The court then considered whether Hepp’s right of publicity claims fell within Sec. 230(e)(2)’s exception for “any law pertaining to intellectual property”—an issue of first impression within the Third Circuit. The court acknowledged “there is disagreement between the Ninth Circuit and certain district courts over whether the CDA preempts state law intellectual property claims,” pointing to the Ninth Circuit’s 2007 decision in Perfect 10, Inc. v. CCBill LLC, which held that the CDA preempts state-law right of publicity claims, and the U.S. District Court for the Southern District of New York’s 2009 decision in Atlantic Recording Corp. v. Project Playlist, Inc., which held it does not.

In Perfect 10, the Ninth Circuit explained that “[s]tates have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation,” and that “[b]ecause such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue.” It reasoned that “[a]s a practical matter, inclusion of rights protected by state law within the ‘intellectual property’ exemption would fatally undermine the broad grant of immunity provided by the CDA.” Persuaded by that reasoning, the district court agreed with the Ninth Circuit and held that Hepp’s claims did not fall within the safe harbor exception in Sec. 230(e)(2) and therefore should be dismissed. 

Echoing the Ninth Circuit’s concerns in Perfect 10, the court held: “State laws that could arguably be construed as implicating ‘intellectual property’ vary and are not uniform in their purposes and policy goals. Conditioning CDA immunity on the diverse potentially applicable state laws would have a negative effect on the development of the internet, and, therefore, would run contrary to the purpose and intent of the CDA.” Construing Sec. 230(e)(2) as preserving only federal intellectual property claims, the court added, “preserves the scope of immunity within a predictable body of federal law as opposed to the diverse state law on the subject matter.”

In a footnote, the court briefly considered President Donald Trump’s May 28, 2020, “Executive Order on Preventing Online Censorship,” which the court observed “appears to be directed at preventing censorship by online platforms such as the moving Defendants in this case.” That executive order, issued in the wake of the president’s public spat with Twitter regarding the platform’s application of fact-checking labels to several presidential tweets, appears to endorse a narrow application of Sec. 230(c)’s safe harbor to platforms that purportedly “stifl[e] free and open debate.” Noting that the executive order is currently the subject of a lawsuit filed by the Center for Democracy and Technology alleging that it violates the First Amendment, the district court concluded that the order has no impact on the CDA immunity issue in Hepp’s case.

Summary prepared by Frank D’Angelo and Nathalie Russell