Back in September, FTVLive told you that WTXF Anchor Karen Hepp was suing Facebook and others for $10 million bucks after she says an unauthorized photo of her is being used to promote a dating site, erectile dysfunction ads, and pornography sites.

Hepp’s lawsuit says the photo was used on Facebook to promote a dating site.

Here is a picture of the ad that used Hepp’s photo:

Now, Facebook is firing back at Hepp and her lawsuit, saying that the 1996 Communications Decency Act (CDA) renders Facebook immune to any legal action against it involving content others have placed there.

“Facebook’s decision to allow the advertisement on its platform is a quintessential internet service provider function, which is the very activity the CDA is aimed to protect,” lawyers for Facebook stated in their motion.

But, Facebook concedes that same motion, the applicability of the CDA to right of publicity claims has never actually been tested in the Third Circuit, the federal court jurisdiction that includes Pennsylvania. Some other jurisdictions have upheld that the CDA shields Internet companies from such claims; this jurisdiction has not.

Hepp’s lawyer Samuel Fineman says he’s ready to battle that issue out with Facebook in court. “Facebook is saying in its motion that the court needs to look at these other cases in other jurisdictions and say that the same law should apply here,” Fineman tells Philly Mag. “But a lot of the claims that they’re talking about involved laypeople like you and me. This is a true right of publicity claim from an actually famous person who has built her reputation and has a palpable monetized value for her image and her brand. Facebook is trying to conflate her case with other cases and attempting to nullify a state law.”

It seems wrong that someone can pluck your picture from Facebook or some other social media site and stick it in an ad to sell a product or service.

We’ll have to watch and see how this one plays out.

H/T Philly Mag