State publicity claims are not preempted by the CDA

Doe v. Friendfinder Network, Inc. --- F.Supp.2d ----, 2008 WL 803947 (D.N.H.)

Defendants operate online communities for members who post personal ads, including AdultFriendFinder.com, “the World’s Largest SEX and SWINGER Personal Community.” Users enter personal information to create profiles that can be viewed by other members; portions of profiles (“teasers”) appear on search engines and in ads on other websites. In mid-2005, “petra03755” created a profile. This person was identified 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/E-mail/Phone Fantasies and Discreet Relationship.’” The profile also included “birth date, height, build, and hair and eye color, and … a nude photograph, purportedly of [her].”

Plaintiff alleged that she had nothing to do with the profile, is offended by the promiscuity and perversity of the interests described, and is not shown in the photo. However, she alleged that the profile and photo “reasonably identified” her as petra03755 to people in her community. The only things that the plaintiff knows about the profile’s creator is that he accessed defendants’ site through the Dartmouth College network using a Yahoo! Email address. She argued that defendants “took special pains” to assure users’ anonymity and did nothing to verify accuracy.

When she found out about the profile a year later—because an acquaintance admitted that she’d been discussing the profile with other people who knew plaintiff—she contacted defendants. They removed the profile, but she alleged that consumers had already been deceived into registering for their service to meet her. Moreover, when members attempted to access the profile, they received the message, “Sorry, this member has removed his/her profile.” The plaintiff alleged that this message falsely indicated that she had been a member of the service and had put up the profile in the first place. (She also alleged that the defendants later called petra03755 a “Standard Member” of LesbianPersonals.com.) Moreover, after she complained, the profile allegedly appeared on some of defendants’ other, similar websites, and on teasers on search engines and in ads on other sites, including “sexually related” sites. The ads appeared when a website recognized a user’s location as near her geographic location. The search results appeared when users searched for terms appearing in the profile, including plaintiff’s true biographical information. She alleged that this drove traffic to defendants’ sites.

Plaintiff sued for “invasion of property/intellectual property rights,” defamation, intentional/negligent/reckless conduct, “dangerous instrumentality/product,” intentional infliction of emotional distress, violation of the New Hampshire Consumer Protection Act, false designation in violation of the Lanham Act, and “willful and wanton conduct.”

Unsurprisingly, defendants interposed §230 as a barrier to suit. Plaintiff argued that (1) her claims were based on defendants’ own statements, and (2) her invasion of privacy claim is based on IP rights and thus exempt from §230.

The First Circuit has held that §230 should be broadly construed to implement the congressional policy of avoiding tort liability for online intermediaries, and thus precludes any claim that treats a service provider as a publisher. Thus, the plaintiff can’t make the defendant responsible in any way for the information supplied by whoever created the petra03755 profile. Moreover, the bar on publisher liability also protects against liability based on allegations that defendants “facilitated the submission of false or unauthorized profiles.”

The First Circuit held in the past that allowing people to choose screen names, even multiple screen names is a standard feature; basing liability on that would eviscerate §230. The district court held that this precedent also precluded a claim that defendants wrongfully encouraged anonymous profiles or failed to verify the submitter’s true identity. For the same reasons, defendants could not be liable for “contribut[ing] to the lascivious nature of the profile” by allowing the creator to select from a pre-set menu of “sexual responses.” The underlying misinformation came from the user, not the site.

Likewise, defendants’ decisions about how to treat postings generally, including the wrongful identification of the profile as “hers” after they removed it from their site, are protected, because the wrong stems from the association between the plaintiff and the profile’s content, which can’t be attributed to defendants. The defendants’ behavior of putting a notice up that the profile had been removed was “standard” for ISPs and thus protected by § 230. Premising liability on a “failed” attempt to regulate third-party content would create the kind of perverse incentives that § 230 was designed to avoid. Likewise, the minor alterations they made in the profile (changing “42” to “forties” in the age) were insufficient to make them content providers; that’s an example of protected editorial functions. None of the non-IP claims based on posting or reposting the profile could survive, even after defendants were on notice of the profile’s falsity.

Plaintiff contended that her invasion of privacy claim was an IP claim that survived, and the court agreed that state IP laws were not preempted by §230, 9^th Circuit precedent to the contrary. A plain reading of the statute shows no “federal” modifier on the IP exclusion, and Congress inserted references to federal and state law elsewhere in the same section. That plain-meaning interpretation trumps the alleged congressional goal of national uniformity.

Moreover, state IP law is not necessarily a recipe for inconsistency and disharmony; in most states, the state and federal laws are highly similar. And, since ISPs remain bound by federal IP law regardless, the burdens on them are not much increased by applying state IP law to them. “Indeed, while protecting third-party intellectual property rights no doubt presents some challenges for service providers like the defendants, those challenges would appear to be simply a cost of doing business on-line.”

The next question was whether and to what extent plaintiff’s claims were IP claims. She alleged all four classic privacy torts: (1) intrusion on solitude; (2) public disclosure of private facts; (3) false light; and (4) appropriation of identity for defendants’ benefit. Only (4), the court ruled, could be considered an IP tort. The others did not protect property interests, only privacy interests. She properly stated a claim for violation of her right of publicity because she alleged that defendants made unauthorized use of her persona in the profile itself and in ads and teasers on other sites, and that they did so for their own profit.

Plaintiff’s Lanham Act claim also survived, for both false endorsement and false advertising. (Query whether §43(a)(1)(B) can ever be an intellectual property law for §230 purposes; I would think the answer is no, especially given the court’s distinction between privacy and property torts—false advertising is not a wrong against the plaintiff’s property.) In any event, the court found that plaintiff properly alleged all the elements of a false advertising claim, because of the rather unusual circumstance that defendants actually used her profile in ads. She alleged injury to her reputation, harming her employment opportunities. (Note that she wouldn’t have standing under the majority rule in Lanham Act cases, because her injury isn’t a competitive one--unless she’s actually in defendants’ line of work, which seems unlikely. However, the court cited McCarthy in support of its conclusion that identity appropriation cases often raise both false endorsement and false advertising concerns.) Her claims directly track §43(a)(1)(A)’s language about use of a name in a way likely to cause confusion about “affiliation, connection, or association” or “sponsorship or approval.” (Again, a little sleight of hand going on here—as I understand it, that wasn’t plaintiff’s name on defendants’ sites. What exactly is the designation of origin here? The age and location?)

The court rejected defendants’ argument that only celebrities could make Lanham Act false endorsement claims because only celebrities have commercial interests in their identities. Again, McCarthy supports the conclusion that any person has standing to sue under §43(a) for false or misleading endorsements.