Facebook loses bid for new 3rd Circuit review of news anchor’s lawsuit

  • Anchor sued over Facebook ads that used image without permission
  • Split 3rd Circuit revived case, said Facebook not immune
  • Facebook said decision would chill online speech

(Reuters) – A U.S. appeals court on Wednesday rejected Facebook’s request that it reconsider its decision allowing a Philadelphia news anchor to sue the company over an ad on the site that misused her image.

The 3rd U.S. Circuit Court of Appeals had found in September that Karen Hepp’s claims that Facebook violated her right of publicity by disseminating an ad for a dating app that used a picture of her without her permission weren’t barred by the Communications Decency Act.

The decision sets up a potential appeal to the U.S. Supreme Court. Several advocacy groups supported Facebook in friend-of-the-court briefs asking the 3rd Circuit to rehear the case, including the Electronic Frontier Foundation, the American Library Association and Public Knowledge.

A brief filed jointly by those groups and others said the decision “upends the legal landscape” and will force platforms to either adopt “draconian measures” to avoid bogus alleged IP lawsuits or face “financial ruin” from litigation.

Hepp sued Facebook in 2018 arguing that by publishing the ad Facebook violated her right of publicity under Pennsylvania law, which protects her right to the use of her likeness in commerce.

The CDA provides broad immunity for internet publishers from claims based on third-party content, but has an exception for intellectual property violations. U.S. District Judge John Younge dismissed the case last year, finding Facebook was immune from Hepp’s claims.

The 3rd Circuit revived the case. U.S. Circuit Judge Thomas Hardiman wrote for a 2-1 panel that Hepp’s state right of publicity is an IP right.

In a dissent, Circuit Judge Robert Cowen said the decision was a “drastic step” that undermined the CDA’s objectives and created a split with the 9th Circuit.

Facebook asked the full court to rehear the case last month, arguing the ruling will chill online speech and force courts to decide when a state law relates to IP with “few tools to make that assessment.”

Facebook and its attorney Craig Primis of Kirkland & Ellis didn’t immediately respond to a request for comment, nor did Hepp’s attorney Samuel Fineman of Cohen Fineman.

The case is Hepp v. Facebook Inc, 3rd U.S. Circuit Court of Appeals, No. 20-2725.

For Hepp: Samuel Fineman of Cohen Fineman

For Facebook: Craig Primis of Kirkland & Ellis

Read more:

3rd Circuit splits with 9th, says celeb can sue Facebook for unauthorized photo

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at [email protected]