Doe v. Friendfinder Network, Inc.
2008 WL 803947
Facts: Defendant operates a number of online adult communities. To participate, users register on the websites and provide a variety of personal information, creating an online profile. Portions of the profiles (“teasersâ€) appear on search engines and as advertisements on other websites. In June 2005, a profile was created under the user name “petra03755.†Among other characteristics, the profile indicated that the member was a separated 40 year old woman in the Upper Valley of New Hampshire.
Plaintiff alleges that the biographical information, as well as a nude photograph, reasonably identify her as petra03755. She alleges that acquaintances have discovered this profile and believe that it is her.
Plaintiff contacted defendant, who agreed to remove the profile. After doing so, when a member attempted to access the profile, the following message was displayed: “Sorry, this member has removed his/her profile.†Plaintiff argues that this message is false, and makes people believe that she was once a member of defendant’s website.
The false profile continued to appear for several months on other websites and in teasers.
Procedural History: Plaintiff alleged the following: Invasion of Property / Intellectual Property rights, defamation, intentional/negligent/reckless conduct, dangerous instrumentality/product, intentional infliction of emotional distress, violation of New Hampshire Consumer Protection Act, false designations in violation of Lanham Act, and willful and wanton conduct.
Defendant moved to dismiss based on Section 230 of the Communications Decency Act.
Holding: Motion to dismiss granted on all counts except Invasion of Property / Intellectual Property rights and false designations in violation of Lanham Act.
Analysis:
• Defendant is protected by Section 230 because it is only the publisher of information provided by another information content provider (see Section 230(c)(1)). The only role Defendant played in the initial appearance of the profile was as the publisher of information supplied by petra03755.
• Plaintiff argues that Defendant is liable for facilitating the submission of false or unauthorized profiles, but this does not bar Defendant from Section 230 protection, because doing so would “eviscerate Section 230 liability.â€
• Plaintiff argues that Defendant is liable because it allows users to select from a pre-set menu of “sexual responses†when creating profiles. However, this does not bar Section 230 immunity, because the “underlying misinformation†was provided entirely by the user.
• Defendant is not liable for republishing parts of the profile in “teasers.†“Section 230 immunity depends on the source of the information in the allegedly tortuous statement, not on the source of the statement itself. Because ‘petra03755’ was the source of the allegedly injurious matter in the profile, then, the defendants cannot be held liable for ‘reposting’ the profile elsewhere . . . .â€
• Defendant is also not liable for reposting the profile with slight modifications, since these modifications are part of the defendant’s “traditional editorial functions.â€
• Protection also extends to the defendant’s inherent decisions about how to treat posts, so the defendant is not liable for the misleading message displayed after the profile was removed.
Notes: The court, while dismissing most claims, did not dismiss claims for Invasion of Property / Intellectual Property rights and false designations in violation of Lanham Act, because Section 230 does not preemption intellectual property claims (see Section 230(e)(2)). With regard to the claim for Invasion of Property / Intellectual Property rights, the court did not dismiss the assertion of violation of the right to publicity. The court reasoned that this was a state IP claim, and that state IP claims are not preempted by Section 230.
2008 WL 803947
Facts: Defendant operates a number of online adult communities. To participate, users register on the websites and provide a variety of personal information, creating an online profile. Portions of the profiles (“teasersâ€) appear on search engines and as advertisements on other websites. In June 2005, a profile was created under the user name “petra03755.†Among other characteristics, the profile indicated that the member was a separated 40 year old woman in the Upper Valley of New Hampshire.
Plaintiff alleges that the biographical information, as well as a nude photograph, reasonably identify her as petra03755. She alleges that acquaintances have discovered this profile and believe that it is her.
Plaintiff contacted defendant, who agreed to remove the profile. After doing so, when a member attempted to access the profile, the following message was displayed: “Sorry, this member has removed his/her profile.†Plaintiff argues that this message is false, and makes people believe that she was once a member of defendant’s website.
The false profile continued to appear for several months on other websites and in teasers.
Procedural History: Plaintiff alleged the following: Invasion of Property / Intellectual Property rights, defamation, intentional/negligent/reckless conduct, dangerous instrumentality/product, intentional infliction of emotional distress, violation of New Hampshire Consumer Protection Act, false designations in violation of Lanham Act, and willful and wanton conduct.
Defendant moved to dismiss based on Section 230 of the Communications Decency Act.
Holding: Motion to dismiss granted on all counts except Invasion of Property / Intellectual Property rights and false designations in violation of Lanham Act.
Analysis:
• Defendant is protected by Section 230 because it is only the publisher of information provided by another information content provider (see Section 230(c)(1)). The only role Defendant played in the initial appearance of the profile was as the publisher of information supplied by petra03755.
• Plaintiff argues that Defendant is liable for facilitating the submission of false or unauthorized profiles, but this does not bar Defendant from Section 230 protection, because doing so would “eviscerate Section 230 liability.â€
• Plaintiff argues that Defendant is liable because it allows users to select from a pre-set menu of “sexual responses†when creating profiles. However, this does not bar Section 230 immunity, because the “underlying misinformation†was provided entirely by the user.
• Defendant is not liable for republishing parts of the profile in “teasers.†“Section 230 immunity depends on the source of the information in the allegedly tortuous statement, not on the source of the statement itself. Because ‘petra03755’ was the source of the allegedly injurious matter in the profile, then, the defendants cannot be held liable for ‘reposting’ the profile elsewhere . . . .â€
• Defendant is also not liable for reposting the profile with slight modifications, since these modifications are part of the defendant’s “traditional editorial functions.â€
• Protection also extends to the defendant’s inherent decisions about how to treat posts, so the defendant is not liable for the misleading message displayed after the profile was removed.
Notes: The court, while dismissing most claims, did not dismiss claims for Invasion of Property / Intellectual Property rights and false designations in violation of Lanham Act, because Section 230 does not preemption intellectual property claims (see Section 230(e)(2)). With regard to the claim for Invasion of Property / Intellectual Property rights, the court did not dismiss the assertion of violation of the right to publicity. The court reasoned that this was a state IP claim, and that state IP claims are not preempted by Section 230.