Karen Hepp v. Facebook
14 F.4th 204
3rd Cir.2021Background
- Karen Hepp, a Philadelphia TV newscaster, sued Facebook, Reddit, and Imgur after an unauthorized photo of her was posted online and used in ads (including a FirstMet dating ad on Facebook) and in an Imgur upload linked on Reddit; she alleged violations of Pennsylvania statutory and common-law rights of publicity.
- Hepp alleged commercial harm: her likeness was used without consent to promote services, risking consumer confusion about endorsement and misappropriation of her commercial goodwill.
- The district court dismissed the amended complaint with prejudice, holding § 230 immunity applied and concluding § 230(e)(2) (the intellectual-property exception) did not reach state-law claims; it also found lack of personal jurisdiction over certain defendants.
- On appeal the Third Circuit (majority) reviewed jurisdiction and § 230 issues: it held the district court lacked personal jurisdiction over Reddit and Imgur but that Facebook remained before the court.
- The panel majority held § 230(e)(2) covers state intellectual-property laws and that Pennsylvania’s statutory right of publicity qualifies as a law “pertaining to intellectual property,” so Facebook is not immune under § 230 for that statutory claim; the statutory dismissal was reversed and the case remanded.
- Judge Cowen partially concurred and dissented: he agreed on jurisdiction but would limit § 230(e)(2) to federal IP (or state laws coextensive with federal IP) and would affirm dismissal as to Facebook.
Issues
| Issue | Hepp's Argument | Facebook/Defendants' Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Reddit & Imgur | Their purposeful contacts with Pennsylvania (advertising, merchandise, communities) support specific jurisdiction for Hepp’s claims | Contacts do not relate to the alleged misappropriation; no strong relationship between forum, defendant, and litigation | No specific jurisdiction; district court lacked personal jurisdiction over Reddit and Imgur (claims dismissed as to them) |
| Scope of § 230(e)(2) (federal-only or includes state law) | § 230(e)(2)’s phrase "any law pertaining to intellectual property" naturally includes state laws | § 230’s structure and policy favor a federal-only reading to avoid a patchwork of state regulation and preserve broad immunity | Majority: § 230(e)(2) is not limited to federal IP; it can encompass state intellectual-property laws |
| Right of publicity — is it "law pertaining to intellectual property"? | Pennsylvania’s statutory right of publicity protects commercial value of a person’s likeness and is analogous to trademark/copyright; legal dictionaries treat publicity rights as IP | Right of publicity is rooted in privacy/tort and is not coextensive with federal IP; treating it as IP would undermine § 230 policy | Majority: Pennsylvania statutory right of publicity qualifies as a law pertaining to intellectual property; § 230(e)(2) applies and § 230 immunity does not bar the statutory claim against Facebook |
| Disposition of other claims/relief (common-law claim, leave to amend) | Hepp sought to proceed on common-law claim and to amend where appropriate | Defendants sought dismissal/immunity; some defendants argued lack of jurisdiction | Statutory claim against Facebook revived (remanded); common-law claim and leave to amend left to district court; Reddit/Imgur and certain foreign defendants dismissed for lack of jurisdiction |
Key Cases Cited
- Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017 (U.S. 2021) (specific-jurisdiction standard: contacts must give rise to or relate to the claim)
- Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (held § 230(e)(2) preserved state trademark/dilution claim)
- Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) (construed § 230(e)(2) as limited to federal intellectual property)
- Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009) (textual analysis concluding § 230(e)(2) can cover state IP laws)
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (landmark decision recognizing broad § 230 immunity and underlying policy)
- Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (describing right of publicity as property-like and analogous to IP)
- Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (noting doubt about whether § 230(e)(2) applies to state-law publicity claims and avoiding definitive ruling)