Section 230 does not shield website from state IP claims
Guest blogger John Leonard is at it again, this time summarizing a recent federal court decision construing Section 230 in the “adult website” context.
An interesting decision came down last week from the United States District Court for the District of New Hampshire, Doe vs. Friendfinder Network, et. al. In that case, Judge Joseph LaPlante, in a well-reasoned opinion, replete with common sense, upheld the concept of CDA tort immunity for owners and operators of websites, as to information provided by other information content providers, while extending the intellectual property immunity exemption to state intellectual property laws.
The plaintiff Doe, unwilling, for obvious reasons, to use her real name in the lawsuit, filed a multi-count complaint based upon the appearance on the defendant’s website of her name, purported information, and a purported nude photo of her, for purposes of showing her availability for dating, and, presumably, sexual relationships and activities. In her complaint charging, among other things, invasion of privacy, defamation, infliction of emotional distress, and violations of the New Hampshire Consumer Protection Act and the Federal Lanham Act, the plaintiff denied that she had ever provided any information to the website, that some of the information included in her profile on the website was false, and that the nude photo accompanying the information was not of her.
Interestingly, among the plaintiff’s charges were allegations that the defendants caused portions of the allegedly bogus profile to appear on search engines and as advertisements, or “teasers”, on other unaffiliated sites. Plaintiff’s bogus profile also allegedly appeared on similar websites that are operated by the defendants. She also alleged that, in response to her request that the profile be removed from the website, the defendants then posted the statement that, “this member has removed her profile,” thereby implicitly, if not actually, stating that the allegedly bogus profile was of the plaintiff.
The judge began his analysis by affirming the principle, adopted by most Federal Circuits, that, stemming from Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), sections [47 U.S.C.] 230(c)(1), (f)(3), and (e)(3) of the CDA bar state law claims (except those relating to intellectual property) against interactive computer services for publishing content provided by another information content provider. This immunity, according to the judge, applied even to the complaint that the website operator posted the allegedly bogus profile of the plaintiff on other websites. As to this charge, citing the First Circuit decision of Universal Comm’n. Sys. v. Lycos, 478 F.3d 412 (2007), the judge held that the mere re-posting or repetition of information received from another did not render the defendants “information content providers” on their own behalf so as to subject them to state and common law liability.
As to the charge that the defendants, in their statement regarding the removal of the profile, affirmatively acknowledged that the profile was in fact that of the plaintiff, the judge opined that because the association of the plaintiff with the profile originally came from another content provider, the defendants (in repeating that association) were not responsible for creating the association, and therefore “cannot be considered an ‘information content provider’ under the statute because no profile has any content until a user [here, someone other than the defendants] actively creates it.”
Judge La Plante did, however, rule in favor of the plaintiffs on two not insignificant counts of her complaint, one complaining of a violation of her right to publicity, another charging a violation of the Federal Lanham Act (the statute generally concerned with trademark and trade name issues). As to her invasion of privacy claim, the judge noted that insofar as one of the plaintiff’s four invasion of privacy sub-claims involved the violation of plaintiff’s right to publicity, that sub-claim was one concerning intellectual property, and was therefore exempt from the immunity provision of the CDA. In so holding, the judge explicitly rejected the decision of the Ninth Circuit Court of Appeals in Perfect 10 v. CC Bill, LLC, 488 F.3d 1102 (2007) which held that the intellectual property exemption to CDA immunity applied only to Federal and not to state, intellectual property claims. As Judge LaPlante explained, that interpretation was contrary to the express language of the statute, and in effect constituted a judicial re-writing of the CDA.
Finally, the judge held that the plaintiff’s Lanham Act claims, asserting false advertising and false designation, could proceed because they also were subject to the intellectual property exemption. The judge emphasized that the defendants’ use of the plaintiff’s allegedly false and bogus profile as unauthorized “teasers” for marketing (advertisement) purposes “falls directly” with the language of the Lanham Act preventing such unauthorized use. The judge rejected outright the defendants’ argument that such “false endorsement” claims can only be made by celebrities and did not apply to the common folk, as being totally unsupported by any authority.
In the introduction to this short review, I praised Judge LaPlante’s decision as being well-reasoned and consistent with common sense. I must here, however, add one exception, perhaps just a minor quibble over language but nonetheless, I believe, important. This relates to that portion of his ruling where he found that the defendants’ statement that “this member has removed her profile.” Given that this statement was made after the plaintiff had contacted the defendants and told them that the profile was in fact false, and that she was not a member, were the defendants out-of-bounds when they then affirmatively created the statement that she was a member and that this was in fact her profile? I wonder if this conduct by the defendants did not go beyond the mere repeating of information provided by another, and in effect constituted an affirmative statement authored by the defendants themselves. While the defendants may not have been under an obligation to launch an investigation into who, the original provider of the profile or the plaintiff, was telling the truth, surely they did not have to phrase the removal language in such a way as to continue to identify the plaintiff as “a member” of the service and the subject of the profile. Neutral words such as “this profile removed upon request” would certainly have been sufficient to satisfy the defendants’ need for an explanation without specifically referring to the plaintiff’s person. In this author’s humble opinion, in this specific and limited situation, the court may have extended the CDA tort immunity a little too far.