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Christianne Carafano v. Metrosplash.com, Inc., et al.

Ninth Circuit holds that operator of online dating service is immunized by the Communications Decency Act ("CDA") from defamation, invasion of privacy, misappropriation of right of publicity and negligence claims arising out of the unauthorized posting on defendant's website by a third party of a fictitious dating profile.  This profile contained fictitious information about plaintiff, an actress, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendant to which all users of its service had to respond.

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 Matchmaker.com is an Internet based "dating" service that allows members to search a database containing the profiles of other members.  Matchmaker.com later changed its corporate name to Metrosplash.com, 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 Matchmaker.com web site.

Plaintiff thereafter commenced this lawsuit, raising claims of defamation, invasion of privacy, misappropriation of the right of publicity and negligence.  Defendants argued that plaintiff's claims were barred by operation of Section 230 of the Communications Decency Act.  The Ninth Circuit agreed, and dismissed plaintiff's suit.  The Court held that Matchmaker, the operator of the online dating service, was a provider of an "interactive computer service" under the CDA.  Because the dating profile at issue was authored by a third party, Matchmaker was accordingly entitled to immunity from plaintiff's claims arising therefrom by operation of the 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."

In reaching this result, the court noted that "reviewing courts have treated §230(c) immunity as quite robust" and that there is a "consensus developing across other Courts of Appeals that §230(c) provides broad immunity for publishing content provided primarily by third parties."

Indeed, under the CDA, "Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party. . . .  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 the fictitious dating profile at issue was created by responding to a form questionnaire supplied by Matchmaker, which included multiple choice questions and answers, "does not alter this conclusion."  Supplying these questions and answers did not make Matchmaker the provider of the profile in question, or bar it from receiving immunity for its publication.  Said the Court:

Matchmaker cannot be considered an "information content provider" under the statute because no profile has any content until a user actively creates it.

In reaching this result, the Ninth Circuit disagreed with the court below, which held that Matchmaker's involvement via its questionnaire in the creation of the dating profile at issue precluded it from immunity under the CDA, because such involvement rendered Matchmaker a co-author of the dating profile.  As such, the decision below dismissing plaintiff's claims was affirmed, but on other grounds.