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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...

Christianne Carafano v., Inc., et al.

207 F. Supp. 2d 1055 (C.D. Cal., March 11, 2002), aff'd. on other grds., 339 F.3d 1119, No. 02-55658 (9th Cir., August 13, 2003)

Court grants motion of defendants and Lycos for summary judgment, and dismisses claims of invasion of privacy, defamation, misappropriation of right of publicity and negligence brought against them by plaintiff Carafano, an actress.  These claims arose out of the posting of a dating profile by a third party on the defendants' Matchmaker website, which profile allegedly contained fictious information about plaintiff, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendants to which site members had to respond.

The court rejected defendants' argument that plaintiff's claims were barred by application of Section 230 of the Communications Decency Act.  While the defendants were "interactive service providers" within the meaning of the statute by virtue of their operation of the Matchmaker website, defendants were not entitled to the statute's protection because of the role they played in originating the content in question.  Such protections are available only as to claims arising out of information provided by an information content provider other than the defendant.  The court barred defendants from using the CDA as a shield because the information in question was posted in response to a questionnaire prepared by defendants.

Nonetheless, the court dismissed each of the claims raised by plaintiff against defendants.  Plaintiff's invasion of privacy claim failed because the information in question, her address, was "newsworthy," making its publication non-actionable.  The defamation claim was dismissed because, given plaintiff's status as a public figure, she could not show that defendants acted with actual malice in publishing the statements in question, a prerequisite to such a claim.  Such malice was absent because defendants were unaware of the information contained in "plaintiff's" profile at the time it was posted to defendants' site by a third party, and thus did not entertain any serious doubt as to its truth at the time it was published.  Plaintiff's misappropriation of right of publicity and negligence claims failed for the same reason, plaintiff's inability to establish that defendants acted with the requisite actual malice.

Plaintiff Christianne Carafano is an actress who goes by the stage name Chase Masterson.  Among other things, Ms. Carafano had a prominent recurring role in the TV show Star Trek: Deep Space Nine, as well as numerous other TV shows, movies and infomercials.  Ms. Carafano also operates a fan website.

Defendant is an Internet based "dating" service that allows members to search a database containing the profiles of other members. later changed its corporate name to, Inc., which, in turn, was acquired by defendant Lycos (collectively "Defendants").

Member profiles are prepared by members as responses to multiple choice and essay questions drafted by defendants.  Members may also post photographs of themselves on the web site.  Defendants do not review the written portion of a member's profile before making it available on the web, and make no attempt to verify the accuracy of the information contained therein.  Defendants do review all photographs submitted by members, eliminating those that do not comport with defendants' standards.  According to Matchmaker's terms and conditions of membership, members are not allowed to include their home address in their profiles.

In October 1999, a third party created a profile under the account name Chase529 which contained plaintiff's home address and telephone number, as well as four photographs of her.  According to the plaintiff, the profile also contained a number of false statements about her, which characterized her as licentious.  As a result, plaintiff received a series of unwanted communications, including obscene telephone calls.

Shortly after plaintiff became aware of the profile, she brought the matter to the attention of the police and, thru a third party, to defendants.  Defendants promptly removed "plaintiff's" profile from the web site.

Plaintiff thereafter commenced this lawsuit, raising claims of defamation, invasion of privacy, misappropriation of the right of publicity and negligence.  On defendants' motion for summary judgment, the court dismissed plaintiff's claims.

Defendants argued that plaintiff's claims were barred by operation of Section 230 of the Communications Decency Act ("CDA"), which provides, in pertinent part: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The court held that defendants were providers of an "interactive computer service" within the meaning of the CDA.  Contrary to plaintiff's contentions, one does not have to be an Internet Service Provider such as AOL to qualify for protection of the CDA.  "Internet Service Providers are only a subclass of the broader definition of interactive service providers."  "Interactive Computer Service" is defined in the statute as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server …".  As placed a searchable database of member profiles on servers which it made available to users via the web, it was a provider of "interactive computer service" within the meaning of the CDA.

However, held the court, defendants were not entitled to the protection of the CDA because of their involvement in the creation of the content in question.  As stated above, the CDA only protects against "any information provided by another information content provider" -- it does not provide protection against suit arising out of content originated by the defendant itself.  Under the Act, an information content provider is "any person … that is responsible, in whole or in part, for the creation or development of information provided through the Internet …".  The court held that defendants' involvement in drafting the questionnaire from which the third party created "plaintiff's" profile was sufficient to make defendants information content providers within the meaning of the CDA, and thus bar them from seeking the protection of the CDA for its publication.  Said the court:

"This Court agrees that Matchmaker qualifies as an information content provider.  The users of the Matchmaker website do not simply post whatever information they desire.  Rather, a profile for each user is created from the questions asked by Matchmaker and the answers provided.  These questions consist of multiple choice questions and a series of essay questions tailored for each Matchmaker community.  Thus, Matchmaker is an "entity that is responsible … in part, for the creation or development of information provided through the Internet …" within the meaning of the CDA.

The court granted defendants summary judgment, dismissing plaintiff's invasion of privacy claim arising out of the publication of her home address.  Such a claim "requires (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public interest."  To determine whether an item is of legitimate public interest, courts consider "(1) the social value of the published facts (2) the extent of the intrusion into ostensibly private matters and (3) the extent to which a party voluntarily assumed a position of public notoriety."

Finding plaintiff's home address newsworthy, the court held that its disclosure did not give rise to a claim for invasion of privacy.  In reaching this conclusion, the court relied on the fact that (1) "plaintiff's address is not a 'private matter' but rather a matter of public record," (2) her address has social value as evidenced by myriad tours and maps of 'star's homes' and (3) plaintiff had voluntarily assumed a position of public notoriety.

The court also dismissed plaintiff's defamation claim.  For a public figure to prevail on a defamation claim, she must prove not only that the statement is false, but also that its publication was motivated by "actual malice."  Actual malice, in turn, requires a showing that the defendant acted with knowledge that the statement was false or with reckless disregard of whether it was false or not.  Importantly "reckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing.  There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication" at the time this publication was made.

The court determined, based on the evidence before it, that plaintiff was a general purpose public figure given her status as a popular movie and TV actress.  The court further found that defendants did not act with actual malice when the publication was made because defendants were unaware of the contents of the posting at the time it was made by a third party not acting in concert with defendants.  Given that defendants did not review the written portion of member profiles before they are posted, they had no knowledge of its contents, and therefor did not entertain serious doubts as to the truth of the profile at the time of publication.

The court dismissed plaintiff's remaining claims for misappropriation of the right of publicity and negligence because of her inability to establish that defendants acted with malice.  Said the court:  "because Plaintiff cannot establish a triable issue with respect to actual malice … Plaintiff cannot sustain her claim for misappropriation of the right of publicity. … [In addition] because plaintiff cannot sustain her defamation claim without evidence that Defendants acted with constitutional actual malice, plaintiff cannot sustain her claim that Defendants were negligent in publishing the Profile."

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