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Gimme section 230 shelter – online dating pranks and CDA Immunity

Creating a fake profile for one of your friends (or enemies) on an online dating site. Now who hasn’t done this, or thought about it? I’ve certainly been both perpetrator and victim of this kind of prank. Both times I thought it was funny.

However, it might not be so funny for the online dating site.

This week has been a big week for this issue in the federal courts. One one coast, a decision out of the federal district of New Hampshire poked a hole in Section 230 immunity for online dating and other social networking sites. On the other coast, a decision out of the 9th Circuit clarified an earlier online dating site prank case.

New Hampsire, Jane Doe v. Friendfinder Network

In a strange twist, the District of New Hampshire found that the website, could be held liable for a user’s creation of a fake profile. See Jane Doe v. Friendfinder Network, __ F.Supp.2d __ (D.N.H. 2008). (HT to Citizen Media Law Project)

In case anyone reading is unfamiliar with “Adult Friend Finder,” (AFF) it is not exactly the kind of online dating site that you are probably used to seeing. There is no Neil Clark Warren matching you with your soul mate. AFF is for people looking to get laid — NOW.

Someone with the username petra03755 created a profile for “Ms. Doe,” naturally without her permission. The profile identified her as seeking “Men or Women for Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship.” The profile also provided Doe’s identifying characteristics and a nude photo that was supposed to be Ms. Doe.

The plaintiff alleges she had nothing to do with creating the profile, that she does not engage in the “promiscuous sexual lifestyle” or the “perverse” sexual activities it describes, and that the photograph does not depict her. Nevertheless, she claims that the biographical information and photo “reasonably identified” her as “petra03755” to people in her community. (source)

She apparently contacted AFF, and they took down the profile.

“As a result, when other members thereafter attempted to access the profile, the site displayed the message, “Sorry, this member has removed his/her profile.” The plaintiff asserts that this Message was itself false in communicating that she was a member of the service and that the profile had been hers in the first place. She further faults the defendants for doing nothing to inform other users that the profile “had in fact been bogus and false.”

The plaintiff sued under the following counts:

• “Invasion of Property/Intellectual Property Rights”(Count I);
• Defamation (Count II);
• “Intentional/Negligent/Reckless Conduct” (Count III);
• “Dangerous Instrumentality/Product” (Count IV);
• Intentional infliction of emotional distress (Count V);
• Violation of the New Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A (Count VI);
• False designations in violation of the Lanham Act, 15 U.S.C. 1051 et seq. (Count VII); and
• “Willful and Wanton Conduct” (Count VIII).

Given that Section 230 provides immunity to online service providers who do not create the complained-of content, the court dismissed all but Count I. I am a bit surprised that sanctions were not imposed upon the plaintiff for bringing the other counts, as any idiot should know that.

But why wasn’t Count I dismissed?

The CDA provides immunity to a broad swath of claims, but it exempts intellectual property claims. “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2). The 9th Circuit, in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir.) held that this meant federal intellectual property claims — not state law claims. However, the First Circuit noted in dicta that Section 230 contains no such limitation. See Universal Comm’n
Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007).

The Court held that since the plaintiff brought an invasion of privacy claim, one form of invasion of privacy is a “right of publicity” claim, therefore this portion of Count I should survive a motion to dismiss under Section 230.

I find the Court’s analysis of the state vs. federal law issue to be correct. Nothing in Section 230 limits CDA immunity to just federal intellectual property rights. However, I’m not so sure about the court’s decision that rights of publicity are “intellectual property.” Right to publicity smells more like a privacy right to me, and thus is a non intellectual property issue.

On the other hand, as a friend pointed out, although publicity rights derived from privacy rights, there are some reasons why publicity might be correctly considered to be a form of intellectual property. Publicity rights can be licensed, transferred, can survive death in some states (unlike straight-up privacy rights), etc.

Ultimately, I think that the privacy-property distinction is a fascinating question, and I hope that the First Circuit gets a chance to resolve that question.

The 9th Circuit: clarifies Carafano v. Metrosplash

There was a similar case out of the 9th Circuit (which was clarified by today’s decision) back in 2003. See Carafano v., Inc., 339 F.3d 1119 (9th Cir. 2003). In that case, an “unknown prankster” impersonated actress Christianne Carafano and created a fake profile for her on an online dating site. That profile included Carafano’s home number and address, and said that she was looking for an “unconventional liason.”

The 9th Circuit held that an online dating service could never be the “publisher” of a profile on its service. “[N]o [dating] profile has any content until a user actively creates it.” Id. at 1124. Accordingly, no online dating service could be held liable for a profile created by another person.

However, in Fair Housing Council v., __ F.3d __ (9th Cir. Apr. 3, 2008), the 9th Circuit receded from that language ever so slightly.

“[E]ven if the data are supplied by third parties, a website operator may still contribute to the content’s illegality and thus be liable as a developer. Providing immunity every time a website uses data initially obtained from third parties would eviscerate the exception to section 230 for “develop[ing]” unlawful content “in whole or in part.” 47 U.S.C. § 230(f)(3).

We believe a more plausible rationale for the unquestionably correct result in Carafano is this: The allegedly libelous content there—the false implication that Carafano was unchaste—was created and developed entirely by the malevolent user, without prompting or help from the website operator. To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content—indeed, the defamatory posting was contrary to the website’s express policies. The claim against the website was, in effect, that it failed to review each user-created profile to ensure that it wasn’t defamatory. That is precisely the kind of activity for which Congress intended to grant absolution with the passage of section 230. With respect to the defamatory content, the website operator was merely a passive conduit and thus could not be held liable for failing to detect and remove it. (source)

What next?

The Carafano case makes sense, even as clarified by There is no absolute immunity for an online dating site, since there might be something that site did to induce the creation of the complained-of profile.

The Adult Friend Finder case only makes half-sense. I don’t see any support in Section 230 for the proposition that it only applies to federal intellectual property claims, and thus I agree with the District of New Hampshire on that one. On the other hand, I don’t agree with the proposition that right of publicity claims are “intellectual property” claims. In my opinion, they are privacy claims, and the First Circuit should overturn the District of New Hampshire’s decision, should AFF appeal.

Special thanks to Mike Heilbronner for pointing out the support for “publicity as intellectual property” points.

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