In Sweden, there is an expression “Hepp Hepp!” - this loosely translates to “let’s go!” or “all aboard!” Karen Hepp, co-anchor of FOX’s Good Day Philadelphia, must be feeling the same thing this week, after the Third Circuit overturned a 2020 US District Court decision in her case against Facebook.
Two years ago, in September, 2019, Hepp filed a $10M suit in United States District court, alleging that Facebook, Reddit and others used a photo of her without permission to do so. The photo, allegedly taken by a security camera in a New York convenience store, was used to advertise pornographic websites, an erectile dysfunction remedy, and dating sites. As happens so frequently on the Internet, the photo then took a markedly worse path, becoming a .gif image showing a fabricated sexact, as well as depicting Hepp as what is known on certain sites as a “MILF.”
But Facebook is a powerful player, one with its digital grasp either enhancing our digital lives or around our collective necks, depending upon your point of view. The company’s response to the lawsuit was characteristically aggressive and fueled Hepp’s resolve to fight. At the trial court in 2020, Facebook successfully moved to dismiss the case, arguing that the highly-controversial Section 230 of the federal Communications Decency Act would shield them from liability here. While designed as a shield, Section 230 is also used as a sword by companies such as Facebook, Twitter, and the like to kill litigation arising from offensive posts or comments by their site users.
On appeal to the Third Circuit, Hepp’s lawyers argued that Section 230 has certain exceptions, with a critically important one to be found in Pennsylvania law. Tim George, an Erie, Pennsylvania lawyer, explains that Pennsylvania has a specific law designed to protect public figures such as Hepp:
“In Pennsylvania, we have a statutory right of publicity, found in Pa. Ann. Stat. tit. 42 § 8316. It is designed to protect people such as Ms. Hepp whose name, image, or likeness has a commercial value. Without permission, no one can use their NIL for commercial or advertising purposes, as the Third Circuit has determined was the case here.”
The Third Circuit recognized the applicability of Pennsylvania’s 42 § 8316 here because Hepp perfectly fits the statute’s limiting of claims to individuals whose name, image, or likeness has true commercial value. Hepp’s years of work met the statutory bar of having “commercial value” as a “valuable interest” in her name, image, or likeness that she “developed through the investment of time, effort and money.”
The court also made sure to specify that their decision is about the commercial nature of Facebook’s act - that this decision was neither about limiting free speech or the validity of Section 230 itself:
“We close by emphasizing the narrowness of our holding. First, it does not threaten free speech. Hepp’s statutory claim against Facebook clarifies the point. She alleges her likeness was used to promote a dating service in an advertisement. And she claims that misappropriated the effort she spent to build a valuable reputation, so it could confuse consumers by suggesting she endorses the service. Again, the analogy to trademark is striking. Just as a counterfeit item can misappropriate a trademark owner’s goodwill, so too might the unauthorized use of Hepp’s image in the ad.”
The court added:
“Section 230 does not preclude claims based on state intellectual property laws. Hepp’s statutory claim against Facebook fits that bill.”
It is foreseeable that Hepp’s Third Circuit victory could pave the way for what may eventually become a Facebook appeal to the Supreme Court. Here’s how that could unfold:
The Third Circuit’s decision remanded the case to the district court (the trial court). In other words, it invalidates their earlier decision to grant Facebook’s motion to dismiss. So Hepp has another shot at winning her lawsuit when it is argued in district court. The losing party in that suit could again file an appeal with the Third Circuit, and, based upon that decision, the losing party on appeal could file the ultimate appeal - an appeal for a writ of certiorari to the Supreme Court.
But we should keep in mind that getting a case heard by the Supreme Court is more difficult than getting into Harvard. The Supreme Court grants certiorari to less than two percent of the cases presented to it for review each year.
Yet this is a particularly interesting case today because it is in a very fertile area of the law - the unauthorized use of one’s name, image, and likeness, known as NIL. NIL has been all over the news the past few months because of the landmark decisions around whether NCAA athletes should be able to monetize their own name, image, and likeness. Now that they can, we will more than likely see similar cases to this, where an athlete's NIL is used without their knowledge or permission.
The tide of public opinion has also shifted a lot in the two years since Hepp’s initial filing. Especially since the global pandemic began, we are spending more time online and are more sensitive to the importance of our online reputations and far less tolerant of those who seek to exploit us on the internet.
So while Karen Hepp will once again argue in district court as to why exceptions from Section 230 apply to her celebrity NIL case, it won’t take long for a new data set of claims involving college athletes to follow and test the same legal concepts. Looking forward, this is something that might make the Hepp case an interesting one for review by the highest court in the land.