Court Grants Websites CDA Immunity for Unauthorized Photo

The Eastern District of Pennsylvania issued an opinion in a case brought by a newscaster against Facebook. Plaintiff Karen Hepp, a newscaster, brought the suit for an allegedly “unauthorized photograph [of her]… captured by a security camera in a New York City convenience store, that was then posted by third-party users on…websites and social media platforms…” Facebook filed motions to dismiss claiming they were immune under the Communications Decency Act (CDA). The court agreed and granted the motion.

Hepp stated that she is a public figure and has “suffered harm from the unlawful dissemination and publication of her image” and claimed that defendants have “violated her common law and statutory right of publicity.” She claimed that “[a]pproximately two years ago, [she] discovered through her co-workers and managers, that, without her consent, a photograph of her taken by a security camera in a convenience store in New York City was being used in online advertisements for erectile dysfunction and dating websites.” She said she did not know that the photograph was taken in the store and does not know what store took this photograph or how it was obtained. Hepp said her “photo was featured in a Facebook advertisement soliciting users to ‘meet and chat with single women.’” She stated that the spread of the image affected her “image/brand on social media sites” and her “social media ranking” on Instagram and Twitter.

The court noted that Hepp never claims that defendants “created, authored, or directly published the content that is the subject of this lawsuit.” The defendants filed motions to dismiss the plaintiff’s amended complaint; they claim that Hepp’s publicity right claims are barred by the CDA. The CDA states “‘[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,’ and expressly preempts any state law to the contrary.” Therefore, “internet service providers are not liable for third-party content.” Courts often have a broad interpretation of the statute “to maintain the robust nature of Internet communication” and to minimize government interference, in order to “implement Congress’s policy choice.”

The court found that the defendants meet the requirements for CDA immunity. Specifically, the requirements are: “(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.’” The court stated that the plaintiff has sought to hold defendants liable for information provided by a third-party content provider. The defendants did not create or develop this image, rather the image was provided by a third-party and defendants allowed this image to be posted on their respective. Hepp has sought to “treat each [d]efendant as a ‘publisher or speaker’ of the content posted by third parties.” The court notes that since this claim relies on the premise that defendants hosted third-party content, “these claims are not actionable” under CDA.

Hepp is represented by Cohen Fineman, LLC. Defendant Imgur is represented by Michael LiPuma, Esq. Facebook is represented Royer Cooper Cohen Braunfeld LLC and Kilpatrick Townsed & Stockton LLP.