Subject Matter Index All Decisions About Us Statutes Articles Online Resources Help

Home

Martin Samson, author of the Internet Library of Law and Court Decisions

Recent Addition

Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Jane Doe v. Friendfinder Network Inc. and Various, Inc.

Civil Action No. 07-cv-286 (D. N.H., March 27, 2008)

Court holds that the Communications Decency Act immunizes defendants from various non-intellectual property claims arising out of their making available on their adult social networking sites an anonymous profile authored by an unknown third party which plaintiff claims falsely appears to people who know her to be her own.  The Court holds that this immunity also covers non-intellectual property claims arising out of defendants reposting this profile on third party sites, making slight alterations to the profile as to the participant’s age, and using the profile in teasers and other advertisements for defendants’ site.  As a result, the Court dismissed claims plaintiff advanced for defamation, intentional infliction of emotional distress, intentional, reckless, negligent and/or willful and wanton conduct, and violations of the New Hampshire Consumer Protection Act, arising out of such alleged misconduct.

The Court held that the Communications Decency Act did not, however, immunize defendants from intellectual property claims plaintiff advanced, both under applicable federal and state laws, including right of publicity claims advanced under New Hampshire state law.   Plaintiff was accordingly allowed to proceed with claims that defendants, by including identifiable aspects of plaintiff’s persona in advertisements and ‘teasers’ in an effort to increase the profitability of their websites, violated her right to publicity.

The Court further held that plaintiff could proceed with Lanham Act false designation of origin and false advertising claims against the defendants.   The false advertising claim was based on the inclusion of the profile at issue in ‘teasers’ and other advertisements for defendants’ site.  These acts allegedly deceived consumers into registering for defendants’ services in the hope of interacting with plaintiff, and caused injury to her reputation as a result, including alleged lost employment opportunities.  The false designation of origin claims similarly arose out of defendants’ use of the profile at issue in marketing their sites, which falsely implied plaintiff’s affiliation with, or sponsorship and approval of, defendants’ site and service.

Defendants operate a number of online ‘adult’ dating services, including Adultfriendfinder.com, which bills itself as “the World’s largest sex and swinger personal community.”  To participate, users create a profile that can be viewed by other participants.  This profile supplies personal information about the user.  Interested participants use the profile to contact other like-minded individuals.

According to plaintiff, an unknown third party created a profile under the screen name ‘petra03755.’  This profile identified the user as ‘a recently separated 40 year old woman in the Upper Valley region of New Hampshire who was seeking ‘men or women for erotic chat/email/phone fantasies and discreet relationship.’  In addition, the profile identified the user’s purported sexual proclivities, and supplied both biographical details and a nude photograph.  Plaintiff alleged that this profile falsely portrayed her, especially insofar as it purported to describe her sexual proclivities.

Plaintiff alleged that based on the biographical information and photo contained in this profile, members of her community formed the belief that ‘petra03755’ was in fact her.  This caused plaintiff injury, both emotionally and to her reputation, and allegedly caused plaintiff to lose job opportunities.

In response to plaintiff’s complaints, defendants removed the ‘petra03755’ profile from the Adultfriendfinder.com website.  However, for several months thereafter, the profile allegedly appeared with slight modifications as to plaintiff’s age on similar websites operated by the defendants.  In addition, defendants allegedly used portions of this profile in ‘teasers’ and advertisements that appeared on other websites, including ‘sexually related’ ones.  Search engines would retrieve these ‘teasers’ in response to searches containing some of the biographical information in the profile.

As a result of the foregoing, plaintiff commenced suit, charging defendants with violating her right of publicity, false designation of origin and advertising in violation of the Lanham Act, defamation, intentional infliction of emotional distress, intentional, reckless, negligent and/or willful and wanton conduct, and violations of the New Hampshire Consumer Protection Act.

Defendants moved to dismiss, arguing that plaintiff’s claims were barred by application of the Communications Decency Act because the content at issue was created by a third party.  As explained below, the Court granted in part, and denied in part defendants’ motion, granting dismissal of the non-intellectual property claims plaintiff advanced, but denying dismissal of the intellectual property claims asserted.

The Court held that the Communications Decency Act “bar[s] state law claims against interactive computer services for publishing content obtained from another information content provider.”  This barred plaintiff from pursuing claims arising out of defendants’ publication of the “Petra” profile, as this was content placed on their website that was authored by a third party.  Said the Court:

[B]ecause the only role the defendants played in the initial appearance of the profile was as the publisher of information supplied by ‘petra03755’, the plaintiff cannot call the defendants to answer for that under state law.

More significantly, the Court held that the Communications Decency Act barred defendants from liability for defamation claims arising out of the reposting of that profile, whether on other websites, or in ‘teasers’ or other advertisements.  This was true even if defendants knew the profile was false and unauthorized at the time they engaged in such conduct.  The proper focus, held the Court, was the source of the offensive information, and not the source of the statement itself.  As the source of the offensive information, even in reposted statements, was a third party, and not defendants, the CDA barred liability.  Said the Court:

This reasoning … is also fatal to the plaintiff’s claim arising from the defendants’ alleged ‘first party statements’ in posting the profile on websites besides Adultfriendfinder, whether as such or in the form of ‘teasers’ or other advertisements.  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 ‘re-posting’ the profile elsewhere without impermissibly treating them as ‘the publisher or speaker of [] information provided by another information content provider.”  The CDA shields the defendants from precisely that kind of liability.

*                                                          *                                           *

That the defendants allegedly learned that the profile was false and unauthorized before reposting it does not bring their conduct outside the protections of the Act.  As the First Circuit held in Universal “it is by now well established that notice of the unlawful nature of the information provided is not enough to make it the service provider’s own speech’ under Section 230.  478 F.3d at 420 (citing Zeran, 129 F.3d at 332-33).

The Court further held that the CDA immunized defendants from claims arising out of the reposting of the profile at issue with slight alterations as to the participant’s age – from 40 or 41 to ‘early 40s’ - that did not contribute to its injurious character.  Said the Court:

Under the CDA … the plaintiff cannot recover from the defendants for reposting the profile with what she describes as ‘slight’ modifications, as other courts have ruled in rejecting similar claims.  … [A] service provider’s exercise of its editorial prerogatives as to information from another content provider does not transform the service provider into the content provider under Section 230.  While, in some cases, whether the service provider has exceeded its editorial privileges may present a close question, the plaintiff herself characterizes the defendants’ modifications to the profile as ‘slight’ and does not allege that they contributed to its injurious character.

As a result, the Court granted so much of defendants’ motion to dismiss which sought to dismiss plaintiff’s claims for defamation, intentional infliction of emotional distress, intentional, reckless, negligent and/or willful and wanton conduct, and violations of the New Hampshire Consumer Protection Act.

The Court denied so much of defendants’ motion to dismiss which sought to dismiss plaintiff’s invasion of privacy/right of publicity claim.  Under Section 230(e)(2), the immunity afforded by the Communications Decency Act does not extend to ‘intellectual property’ claims.  Section 230(e)(2) provides that “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” 

The Court held that this applied both to federal and state intellectual property laws.  In reaching this result, the Court found more persuasive dicta from the First Circuit in Universal Comm’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422-23 (1st Cir. 2007) than a contrary holding of the Ninth Circuit in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir.) cert denied 128 S.Ct. 709 (2007), where the Ninth Circuit “contrue[d] the term ‘intellectual property’ to mean ‘federal intellectual property.’”
Finding that “the right of publicity is a widely recognized intellectual property right,” the Court held that a claim that defendant violated plaintiff’s right of publicity “arises out of a ‘law pertaining to intellectual property’ within the meaning of [the Communications Decency Act]” and is accordingly exempt from its grant of immunity.  Said the Court “Section 230(e)(2) exempts her right of publicity claim from the immunity provision of the CDA …”.

At the pleading stage, the Court held that plaintiff had stated a valid claim that defendants violated her right of publicity by using the profile at issue in advertisements and teasers to promote their website in an effort to increase their profits.  Said the Court:

The plaintiff alleges that the defendants made an unauthorized use of identifiable aspects of her persona in the form of the profile itself and the portions of it that appeared as advertisements and ‘teasers’ on other websites and, furthermore, that the defendants did so in an effort to increase the profitability of their business.  These allegations suffice to state a claim for infringement of the plaintiff’s right to publicity.

The Court further held that the Communications Decency Act does not exempt defendants from plaintiff’s Lanham Act claims, which clearly are intellectual property claims exempted by the operation of Section 230(e)(2).  Finding that plaintiff had adequately plead Lanham Act claims both for false advertising and false designation of origin, the Court denied so much of defendants’ motion which sought to dismiss these claims.

The false advertising claims were grounded on the inclusion of the profile at issue in teasers and other site advertisements, which falsely represented that plaintiff was a participant in defendants’ dating service and thereby injured her reputation.  Said the Court:

She claims that defendants, through the use of the profile in ‘teasers’ and other advertisements placed on the Internet, falsely represented that she was a participant in their on-line dating services; that these misrepresentations deceived consumers into registering for the defendants’ services in the hope of interacting with the plaintiff; and that she suffered injury to her reputation as a result – including, she believes, opportunities at employment.  The plaintiff has therefore stated a false advertising claim under the Lanham Act. …  [W]here plaintiff alleges that the defendants made unauthorized use of her identity in marketing their websites, creating the false – and from her perspective, harmful – impression that she was affiliated with them.  She has therefore stated claims for both infringement of her common-law right to publicity and false advertising under the Lanham Act.

Finally, the Court held that plaintiff had pled a valid claim for false designation of origin under the Lanham Act by alleging the unauthorized use of her name by defendants for marketing purposes, which falsely implied her affiliation with, or endorsement of, defendants’ site and services.  Said the Court: 

The plaintiff has likewise stated a claim for false designation under Section 43(a) of the Lanham Act.  In relevant part, this subsection prevents a defendant from using the plaintiff’s name in commerce in connection with services in a way likely to cause confusion as to “the affiliation, connection, or association” of the parties or the plaintiff’s “sponsorship or approval” of the defendant’s “services, or commercial activities.”  The defendants’ unauthorized use of a plaintiff’s identity for marketing purposes “falls directly” within this language, which “makes it clearer than ever that Section 43(a) is an appropriate vehicle for assertion of the claim of falsely implying the endorsement of a product or service by a real person.”

Disclaimer  |  Attorney Advertising
© Copyright 1997-2016 Martin H. Samson All Rights Reserved
Printer Friendly