On September 23, 2021, in Hepp v. Facebook, the US Court of Appeals for the Third Circuit held that a news anchor's state statutory right of publicity claim against an internet service provider is not barred under Section 230 of the Communications Decency Act of 1996 (CDA) because the claim fell within the intellectual property carveout under Section 230(e)(2) ( (3d Cir. Sept. 23, 2021)).

In 2018, Karen Hepp, a successful and well-known Philadelphia news anchor, learned that a photograph of her was being used in online advertisements for erectile dysfunction products and various dating websites. Hepp sued Facebook, Reddit, and Imgur for displaying the advertisements, alleging that the photograph violated her right of publicity under Pennsylvania law.

Each of the defendants moved to dismiss the complaint under Section 230 of the CDA, which bars claims against internet service providers based on the posting of third-party content (47 U.S.C. § 230(c)). Hepp argued that her right of publicity claim falls within the CDA's express exception for intellectual property claims (47 U.S.C. § 230(e)).

The district court dismissed Hepp's case with prejudice, holding that:

Hepp appealed.

On appeal, after holding that the district court lacked jurisdiction over Reddit and Imgur, the Third Circuit turned to interpret the CDA's intellectual property exception to decide whether Hepp's right of publicity claim may proceed against Facebook. The court analyzed the text and intent of the CDA, as well as the Ninth Circuit's decision in Perfect 10 and contrary district court decisions holding that state claims fall within the CDA's intellectual property exception. The court disagreed with the Ninth Circuit and reversed the district court's holding, concluding that:

The court remanded Hepp's right of publicity claim against Facebook for the district court to assess the claim on the merits.

In a dissent, Judge Robert Cowen noted the inconsistency of state right of publicity and intellectual property laws and argued that the majority decision threatens to stifle free speech and open the floodgates to state law claims against internet service providers. Anticipating the dissent, the majority noted that its decision was limited to Pennsylvania's statutory right of publicity. It also highlighted the lack of state law intellectual property litigation against internet companies despite similar district court findings starting more than a decade ago.