Mark Zuckerberg’s company tried to dismiss Fox 29’s lawsuit. Again. But the judge did not have it. Here are the latest ones.

Karen Hepp, who is suing Facebook for using a photo of her

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

The trial of Karen Hepp vs. David Goliath against Facebook has another day to go.

As I detailed in this exclusive profile of Fox 29 presenter since February, Hepp was involved in a legal battle with Facebook in 2019. Then he sued the company for a photo with her that appeared on Facebook in an advertisement for a dating site without her knowledge or permission.

Hepp, a mother married to three children from Lower Merion, filed that case in federal court in Philadelphia in September 2019. The judge rejected the request in 2020, after Facebook successfully claimed that the company is immune from any liability, in part from caused protections to Facebook and companies like this through a controversial part of U.S. law, known as Section 230. (Section 230 is still hotly debated even this week.)

But Hepp’s lawyer, Samuel Fineman of Cherry Hill, has appealed to the Third Circuit Court of Appeals, which covers all federal courts in New Jersey, Pennsylvania and Delaware. And after hearing the oral arguments of lawyer Facebook and Fineman, the appellate court ruled that the Philadelphia judge erred in dismissing Hepp’s case. Of course, Facebook was not happy with this result, so the company asked the appellate court to reconsider its decision. The panel of judges refused to do so. So Hepp’s case in federal court in Philadelphia started where he 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 did not use the photo for commercial or advertising purposes. It was just an advertisement from another company that happened to appear on Facebook, and Hepp should show that Facebook made uses the photo in a commercial way for her claim to succeed, Facebook argued. In addition, lawyers for the social media giant said, Facebook had no “real news” that Hepp’s photo had been used by a Facebook ad without her permission.

“It simply came to our notice then appeared on FacebookFineman replied when asked how Facebook could claim that the presence of her photo did not bring any commercial benefit to Facebook, which has not yet publicly commented on the case. “Selling ads is part of their core business model!”

Last week, the federal judge hearing the case in Philadelphia rejected Facebook’s motion to dismiss, saying that whether Facebook used the photo for commercial purposes and without real knowledge is an “open question.” As for the real issue of knowledge, the judge pointed to Hepp’s accusation in previous court documents that he had repeatedly asked Facebook to remove his photo, but was ignored.

The case is now in the discovery phase, with both Hepp and Facebook officials opening statements. Fineman says he expects the case to be tried in the fall.

By philcp

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