Karen Hepp Scores Another Victory in Her Battle Against Facebook

Mark Zuckerberg's company tried to get the Fox 29 anchor's lawsuit tossed. Again. But the judge wasn't having it. Here's the latest.

karen hepp, who is suing facebook over the use of a photo of her

Karen Hepp, who is suing Facebook over a photo of her that appeared on the site. (Photo courtesy Karen Hepp)

Karen Hepp’s David vs. Goliath lawsuit against Facebook lives to see yet another day.

As we detailed in this exclusive profile of the Fox 29 anchor back in February, Hepp has been engaged in a legal battle with Facebook since 2019. That’s when she sued the company over a photo of her that turned up on Facebook in an ad for a dating site without her knowledge or permission.

Hepp, a married mother-of-three from Lower Merion, filed that case in Philadelphia’s federal court in September 2019. The judged dismissed the claim in 2020, after Facebook successfully argued that the company was immune from any liability, in part because of the protections afforded to Facebook and companies like it by a controversial part of United States law known as Section 230. (Section 230 is still being hotly debated even this week.)

But Hepp’s lawyer, Samuel Fineman of Cherry Hill, appealed the case to the Third Circuit Court of Appeals, which covers all federal courts in New Jersey, Pennsylvania and Delaware. And after hearing oral arguments from Facebook’s lawyer and Fineman, the appeals court ruled that the judge in Philadelphia was wrong to dismiss Hepp’s case. Naturally, Facebook wasn’t satisfied with that outcome, so the company asked the appeals court to reconsider its decision. The panel of judges declined to do so. So Hepp’s case in Philadelphia’s federal court picked up where it left off.

Then in March of this year, Facebook filed a motion to dismiss the case again. In that motion, the company insisted that Facebook itself didn’t use the photo for commercial or advertising purposes. It was merely an ad from another company that happened to appear on Facebook, and Hepp would have to show that Facebook did use the photo in some commercial way for her claim to succeed, argued Facebook. Plus, said lawyers for the social media giant, Facebook had no “actual knowledge” that Hepp’s photo was being used by an ad on Facebook without her permission.

“It was an ad that appeared on Facebook,” Fineman responded when we asked how Facebook could claim that her photo’s presence was of no commercial benefit to Facebook, which has yet to comment publicly on the case. “Selling ads is part of their core business model!”

Last week, the federal judge hearing the case in Philadelphia denied Facebook’s motion to dismiss, stating that whether Facebook used the photo for commercial purposes and without actual knowledge is an “open question.” As for the actual knowledge issue, the judge pointed to Hepp’s allegation in earlier court documents that she repeatedly asked Facebook to remove her photo but was ignored.

The case now moves into the discovery phase, opening up both Hepp and Facebook officials to depositions. Fineman says he expects the case could go to trial as early as the fall.