DATE: Filed August 13, 2003

COURT: United States Court of Appeals, Ninth Circuit (Before Thomas and Paez, Circuit Judges, and Reed, District Judge (sitting by designation). Opinion by Thomas)

PLAINTIFF: Christianne Carafano, a/k/a Chase Masterson

DEFENDANTS: Metrosplash.com, Inc., Lycos, Inc., and Matchmaker.com, Inc.

AMICUS CURIAE: America Online, Inc., eBay, Inc., the Internet Commerce Coalition, the United States Internet Service Provider Association, The American Federation of Television and Radio Artists (AFTRA), Gavin De Becker, Privacyactivism, Privacy Rights Clearinghouse, and the Screen Actors Guild (SAG).

MATERIAL ALLEGATIONS: “Matchmaker.com is a commercial Internet dating service. . . . On October 23, 1999, an unknown person using a computer in Berlin posted a “trial” personal profile of Christianne Carafano in the Los Angeles section of Matchmaker. . . . The posting was without the knowledge, consent or permission of Carafano. The profile was listed under the identifier “Chase529.”

“Carafano is a popular actress [and uses] the stage name of Chase Masterson . . . Pictures of the actress are widely available on the Internet, and the false Matchmaker profile “Chase529” contained several of these pictures. Along with fairly innocuous responses to questions about interests and appearance, the person posting the profile selected “Playboy/Playgirl” for “main source of current events” and “looking for a one-night stand” for “why did you call.” In addition, the open-ended essay responses indicated that “Chase529” was looking for a “hard and dominant” man with “a strong sexual appetite” and that she “liked sort of be [ ]ing controlled by a man, in and out of bed.” The profile text did not include a last name for “Chase” or indicate Carafano’s real name, but it listed two of her movies (and, as mentioned, included pictures of the actress).

“In response to a question about the “part of the LA area” in which she lived, the profile provided Carafano’s home address. The profile included a contact e-mail address, cmla2000@yahoo.com, which, when contacted, produced an automatic e-mail reply stating, “You think you are the right one? Proof it !!” [sic], and providing Carafano’s home address and telephone number.”

CAUSES OF ACTION: Invasion of privacy, misappropriation of the right of publicity, defamation, and negligence.

PROCEDURAL HISTORY: U.S. District Court for the Central District of California, Dickran M. Tevrizian, Jr., J., granted summary judgment in favor of defendants. Carafano appealed.

PROCEDURAL ACTION TAKEN HERE: Affirmed on other grounds.

OUTCOME: “Under the circumstances presented by this case, we conclude that the service is statutorily immune pursuant to” Section 230(c)(1).

OPINION: “[W]e consider to what extent a computer match making service may be legally responsible for false content in a dating profile provided by someone posing as another person.” The panel noted Congress’ findings, and the policy reasons for enacting the statute: “to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.” It also noted the policy decisions described in Zeran, and its recent decision in Batzel, which “joined the consensus developing across other courts of appeals that § 230(c) provides broad immunity for publishing content provided primarily by third parties.”
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“Under the statutory scheme, an “interactive computer service” qualifies for immunity so long as it does not also function as an “information content provider” for the portion of the statement or publication at issue. . . . Under §230(c), therefore, so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.”

“The fact that some of the content was formulated in response to Matchmaker’s questionnaire does not alter this conclusion. Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of the content was left exclusively to the user. The actual profile “information” consisted of the particular options chosen and the additional essay answers provided. Matchmaker was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph. Matchmaker cannot be considered an “information content provider” under the statute because no profile has any content until a user actively creates it.

“As such, Matchmaker’s role is similar to that of the customer rating system at issue in” Gentry v. eBay, Inc., a 2002 California state court decision. [T]he fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a “developer” of the “underlying misinformation.”

We also note that, as with eBay, Matchmaker’s decision to structure the information provided by users allows the company to offer additional features, such as “matching” profiles with similar characteristics or highly structured searches based on combinations of multiple choice questions. Without standardized, easily encoded answers, Matchmaker might not be able to offer these services and certainly not to the same degree. Arguably, this promotes the expressed Congressional policy “to promote the continued development of the Internet and other interactive computer services.”
Carafano responds that Matchmaker contributes much more structure and content than eBay by asking 62 detailed questions and providing a menu of “pre-prepared responses.” However, this is a distinction of degree rather than of kind, and Matchmaker still lacks responsibility for the “underlying misinformation.”

Further, even assuming Matchmaker could be considered an information content provider, the statute precludes treatment as a publisher or speaker for “any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added). The statute would still bar Carafano’s claims unless Matchmaker created or developed the particular information at issue.”
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In this case, critical information about Carafano’s home address, movie credits, and the e-mail address that revealed her phone number were transmitted unaltered to profile viewers. Similarly, the profile directly reproduced the most sexually suggestive comments in the essay section, none of which bore more than a tenuous relationship to the actual questions asked. Thus Matchmaker did not play a significant role in creating, developing or “transforming” the relevant information.