Reddit app. Photo: BigTunaOnline/Shutterstock.com

Wading into an issue of first impression for the circuit in which it sits, a federal court in Pennsylvania has determined that the federal Communications Decency Act bars a Philadelphia news anchor from suing Facebook and Reddit for allowing her photograph to be used on a dating website and in erectile dysfunction advertisements without her consent.

On June 5, U.S. District Judge John Milton Younge of the Eastern District of Pennsylvania dismissed social media giants Reddit, Facebook and Imgur from the lawsuit, captioned Hepp v. Facebook, which Fox 29 anchor Karen Hepp had filed last year contending the sites were allowing a surreptitiously taken photograph of her to be misused.

Although the defendants had contended they should be immune from suit under the CDA, which bars websites from being sued for hosting third-party content, Hepp had countered that her suit met an exception for claims based on intellectual property, arguing that her right of publicity arose from her state law intellectual property rights.

Younge, addressing an issue of first impression for the U.S. Court of Appeals for the Third Circuit, determined the CDA's exception should not be extended to claims arising out of state intellectual property laws.

"State laws that could arguably be construed as implicating 'intellectual property' vary and are not uniform in their purposes and policy goals," he said. "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."

In September, Hepp, who is the co-anchor of the network's popular "Good Day Philadelphia" morning show, sued the social media businesses, along with a company running a pornographic website, alleging they violated the state's right to publicity statute and the corresponding common law.

According to Hepp's complaint, the image in question was surreptitiously taken by a convenience store security camera in New York City approximately three years ago. Hepp claims to not remember the exact name and location of the business or how the picture was disseminated. Since then, the picture has appeared on ads offering the ability to "meet and chat with single women," including one advertisement in which Hepp appeared under the heading "milf."

In one instance, "The photo was modified and featured on Giphy [which was dismissed from the litigation last month] wherein a video appears in the background of a man—who is hiding behind a glass commercial freezer door and masturbating—to what would appear to be from his perspective the backside of the plaintiff," the complaint said. The suit further claims that Hepp's picture also appeared on a pornographic website.

According to the complaint, Hepp learned of the use of her image without permission when her Fox 29 co-workers alerted her.

Pointing to Section 230(e)(2) of the CDA, which says that the law should not be seen as applying to intellectual property claims, Hepp argued that the court should evaluate the case based on her status as a celebrity who makes a living off her image, making it a clear issue of intellectual property and distinguishing it from some case law in the district.

But, citing case law from the U.S. Court of Appeals for the Ninth Circuit, the defendants countered that the exception only applies to federal intellectual property cases, rather than ones stemming from state law claims. Facebook further contended that the fame issue had no bearing on the case.

Younge decided to follow the Ninth Circuit's 2007 decision in Perfect 10 v. CCBill, which he said made it clear that the CDA only granted an exception for claims arising from federal intellectual property rights.

"In this court's view, construing Section 230(e)(2) as preserving only federal intellectual property claims is most fitting because this interpretation simultaneously maintains broad immunity in line with the CDA's stated congressional purpose," Younge said. "This preserves the scope of immunity within a predictable body of federal law as opposed to the diverse state law on the subject matter."

Cohen Fineman's Samuel Fineman, who is representing Hepp, declined to comment since a claim is still pending against the pornographic website that was also sued. Dennis Wilson of Kilpatrick Townsend & Stockton is representing Facebook. Philadelphia attorney Michael LiPuma is representing Imgur. Aditya Kamdar of Durie Tangri is representing Reddit. Kamdar declined to comment, and neither Wilson nor LiPuma returned a call seeking comment.