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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...

Communications Decency Act - Immunity Denied - Internet Library of Law and Court Decisions - Updated November 21, 2008

9 Cal.Rpt.3d 142, A096451 (Cal. App. Crt., 1st App. Dist., October 15, 2003) reversed 40 Cal.4th 33, S 122953 (Cal. Sup. Ct., November 20, 2006)

Rejecting Zeran v. America Online, (4th Cir. 1997) and its progeny, an intermediate California Appellate court holds that the Communications Decency Act ("CDA") does not immunize a user of interactive computer services from a defamation claim arising out of her republication of statements authored by a third party, when the user knew or had reason to know of the falsity of those statements.  As a result, the Appellate Court reversed to much of the decision of the trial court below which had dismissed a defamation claim brought against defendant Ilena Rosenthal as a result of her republication in Usenet postings of a statement authored by a third party (defendant Timothy Bolen) which accused plaintiff Polevoy of criminal conduct.

The trial court had also rested its dismissal under California's Anti-SLAPP statute of plaintiffs' defamation claims on its determination that Polevoy lacked the requisite probability of success because, as a public figure, he could not prove that defendant Rosenthal acted with 'malice' when republishing Bolen's statements.  The Appellate court rejected this determination, holding that plaintiff may be able to establish that Rosenthal acted with the required malice, and therefore could proceed, notwithstanding Rosenthal's allegation that she had checked the veracity of the statements she was republishing with the alleged victim.  The Appellate Court held that such was insufficient to require dismissal of plaintiff's complaint, because of the alleged bias of both the victim and the original author of the posting against the plaintiff.

The Appellate Court did affirm the lower court's dismissal of defamation claims advanced by plaintiff Barrett, because the statements at issue were non-actionable opinion, as well as the trial court's decision to award Rosenthal attorney's fees expended in pursuing her Anti-SLAPP motion to dismiss (though reducing the recoverable amounts to reflect the reversal of that court's decision as to the claims asserted by Polevoy).

This decision, if followed, could have important ramifications for internet service providers and others who regularly repost publications authored by third parties without reviewing their content.  Under the court's ruling, service providers can be liable for defamation as a result of their republication of such statements if they know or have reason to know of the falsity of those statements.  According to the court "distributor liability would [generally] not require a service provider to review communications in advance of posting them but only to act reasonably after being put on notice that the communication is defamatory."  As a result, once the service provider receives notice (from the allegedly defamed individual) of falsity, it must either undertake adequate steps to ascertain the veracity of the statement, remove it, or face potential liability.  This creates tremendous uncertainty as the court did not specify what such adequate steps would be.  Indeed, as noted above, in the case at bar, where plaintiff alleged he was defamed by a statement that he had engaged in criminal conduct, the court held that contacting the victim was not sufficient as a matter of law to warrant dismissal of plaintiff's suit because of the victim's purported bias against plaintiff Polevoy.  Subsequent developments in this case should be watched closely by those interested in this field.

333 F.3d 1018, No. 01-56380 (9th Cir., June 24, 2003) petition rehearing and rehearing en banc, denied, 351 F.3d 904 (9th Cir., December 3, 2003)

In this defamation suit, the Ninth Circuit Court of Appeals holds that the operator of a listserv and website is a user of interactive computer services entitled to the protections of the Communications Decency Act ("CDA") against liability arising out of his publication of information provided by another information provider.  Because, however, the author of the information at issue claimed he did not mean for the defendant operator of the listserv to publish it, the Ninth Circuit remanded the case to the District Court for a determination as to whether the listserv operator was entitled to immunity under the CDA in this particular case.  Such immunity should be granted, held the Ninth Circuit, if the information in question was provided to the listserv operator by a third party under circumstances in which a reasonable person would conclude that the third party provided the information for publication on the Internet.  The Ninth Circuit accordingly vacated so much of the District Court's decision which denied defendant's motion to dismiss this defamation action under California's Anti-SLAPP statute, which motion was to be reconsidered on remand.  The Ninth Circuit also affirmed the District Court's rejection of plaintiff's defamation claims against Mosler, which were predicated solely on its placement of ads on the website at issue.

No. CV-06-1537-PHX-DGC (D. Az., September 5, 2008)

Court in large part grants defendants’ motion for summary judgment, and dismisses claims arising out of defendants’ operation of a website on which third parties, and defendants themselves, posted a number of statements critical of plaintiff Best Western International Inc.  Left unresolved by the Court’s motion were plaintiff’s claims that a number of additional posts authored by defendants were in fact defamatory.

Best Western is a non-profit member corporation, which assists its members in running their hotels.  Defendants are members of Best Western who operate hotels, their spouses, and an individual who assisted in the creation of the website at issue.  The member defendants are bound by the terms of membership agreements with plaintiff. 

The Court held that the immunity granted defendants under the Communications Decency Act barred plaintiff from seeking to hold them liable for defamatory posts authored by third parties that appeared on defendants’ website.  Defamation claims arising out of 50 posts defendants themselves authored failed because plaintiff did not present sufficient evidence to establish that defendants acted with the requisite degree of fault necessary to sustain a defamation claim.  Thus, plaintiff failed to establish that defendants acted with either actual malice or negligence in making these statements, or with knowledge of their alleged falsity.   In reaching this result the Court noted that possessing ill will toward plaintiff was insufficient to establish ether that defendants acted with the requisite degree of fault, or that they were guilty of defaming plaintiff. 

The Court also rejected tortuous interference with contract or prospective advantage claims arising out of the posting on defendants’ site of statements urging plaintiff’s members to switch to a competitor’s organization.  The Court held that plaintiff failed to prove either that such statements caused it any injury, or that defendants or the competitor acted improperly in making these posts.  In reaching this result, the Court noted that plaintiff’s competitor is free to make posts that promote itself and its own economic interests.

Finally, the Court rejected various breach of contract claims advanced by plaintiff, asserting that defendants breached the parties’ membership agreement by making public confidential information, or failing to meet the membership agreement’s requirement to use their best efforts to maintain positive relationships with customers.  As to the former, the Court held there were no such prohibitions in the parties’ agreement that bound defendants.  As to the later, the Court held that the prohibitions applied to other aspects of defendants’ business, with which obligations defendants complied.

The Court did allow plaintiff Best Western to pursue breach of contract claims arising out of the use by the member defendants of Best Western’s trademark on the website at issue, which use purportedly violated the parties’ membership agreement.

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.

CV 2007-003720 (D. Ariz., October 24, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c)(1), mandates dismissal of so much of plaintiff’s defamation claim that arises from the publication by third parties of comments critical of plaintiff on a website defendants operate known as the “”  The CDA further mandates dismissal of claims arising out of defendants’ promotion of its site and the allegedly objectionable content thereon, making the site more accessible to search engines and users, or soliciting contributions to assist in making the information on the site available.  The Court did , however, allow plaintiff to pursue defamation claims arising out of the headlines for third party content authored by the defendants, which themselves purportedly contained defamatory content.

Civil Action No. 07-cv-286 (D. N.H., March 27, 2008)

Court holds that the Communications Decency Act immunizes defendants from various non-intellectual property claims arising out of their making available on their adult social networking sites an anonymous profile authored by an unknown third party which plaintiff claims falsely appears to people who know her to be her own.  The Court holds that this immunity also covers non-intellectual property claims arising out of defendants reposting this profile on third party sites, making slight alterations to the profile as to the participant’s age, and using the profile in teasers and other advertisements for defendants’ site.  As a result, the Court dismissed claims plaintiff advanced for defamation, intentional infliction of emotional distress, intentional, reckless, negligent and/or willful and wanton conduct, and violations of the New Hampshire Consumer Protection Act, arising out of such alleged misconduct.

The Court held that the Communications Decency Act did not, however, immunize defendants from intellectual property claims plaintiff advanced, both under applicable federal and state laws, including right of publicity claims advanced under New Hampshire state law.   Plaintiff was accordingly allowed to proceed with claims that defendants, by including identifiable aspects of plaintiff’s persona in advertisements and ‘teasers’ in an effort to increase the profitability of their websites, violated her right to publicity.

The Court further held that plaintiff could proceed with Lanham Act false designation of origin and false advertising claims against the defendants.   The false advertising claim was based on the inclusion of the profile at issue in ‘teasers’ and other advertisements for defendants’ site.  These acts allegedly deceived consumers into registering for defendants’ services in the hope of interacting with plaintiff, and caused injury to her reputation as a result, including alleged lost employment opportunities.  The false designation of origin claims similarly arose out of defendants’ use of the profile at issue in marketing their sites, which falsely implied plaintiff’s affiliation with, or sponsorship and approval of, defendants’ site and service.

489 F.3d 921, CV-03-09386-PA (9th Cir., May 15, 2007) aff'd en banc 2008 WL 879293 (9th Cir., April 3, 2008).

A divided three judge panel of the Ninth Circuit limited the immunity afforded by the Communications Decency Act (“CDA”), 47 U.S.C. section 230, for website operators involved in the publication and distribution of the responses to questionnaires completed by third parties concerning their roommate preferences. 
The Panel unanimously held that the CDA did not immunize defendant from potential liability for drafting and posting questionnaires that sought information from those using the site about their roommate preferences.  These questionnaires, among other things, sought information about the preferred sexual orientation of the prospective roommate, and were used to create member profiles.  The Panel held that the CDA did not immunize from potential liability under the Fair Housing Act (“FHA”) for requiring members to answer questions that potentially enabled other members to discriminate for or against them.

By a vote of 2 to 1, the Panel further held that the CDA did not immunize from potential liability under the FHA for publishing and distributing member profiles created in response to’s questionnaires. used the content of a user’s responses to its questionnaires to determine who among its members should receive notice that they were seeking a roommate, and/or be permitted to view that user’s profile.  For example, an individual with children was not shown a listing for an apartment occupied by an individual seeking a roommate without children.  The court held that by categorizing, channeling and limiting the distribution of user profiles, was sufficiently involved in the creation of the distributed information to lose the immunity afforded by the CDA to interactive service providers who make available content drawn by third parties. As a result, the Ninth Circuit allowed plaintiffs to proceed with claims that by such conduct, violated the FHA.

Finally, by a vote of 2 to 1, the Court held that the CDA did immunize from potential FHA liability arising out of its publication of users’ responses to’s requests for “Additional comments” concerning their roommate preferences.  In this section of its questionnaire, “strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.”  This question produced the most provocative – and potentially discriminatory - responses found in user profiles.  The court held that the responses to this question constituted content created by third parties within the meaning of the CDA.  As a result, held the Court, by application of the CDA, could not be held liable for publishing these responses on its website.

Case No. 06-CV-105-D (D. Wy., September 28, 2007)

Court finds defendants guilty of engaging in unfair business practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. Section 45(a), by obtaining and selling confidential customer phone records without the affected customers’ authorization.  The Court found that defendant arranged for the purchase of these phone records from third party vendors, which they subsequently resold via their website to third parties.  Illegal means were used by these vendors to obtain the confidential phone records, a fact of which, the Court found, defendant was aware.

In reaching this result, the Court rejected defendants’ claim that they were immunized from suit by application of Section 230 of the Communications Decency Act (“CDA”).  Defendants attempted to come within the ambit of the CDA by casting themselves as a search engine that put those seeking to purchase phone records in touch with ‘researchers’ seeking to sell them.  This characterization of their conduct was rejected by the Court.   The Court held that CDA immunity was not available to defendants because the claims at issue did not seek to treat them as the publisher of information, a prerequisite to such immunity.  Rather, they arose out of defendants’ purchase and resale of confidential information to third parties that was obtained through illegal means.  The Court further held that CDA immunity was not available because of defendants’ role in causing the information at issue to be obtained.  As such, defendants were held to have ‘participated in the creation or development of the information, and thus do not qualify for Section 230 immunity.’

Finally, the Court rejected defendants’ claim that the FTC was equitably estopped by its prior failure to prosecute phone record brokers from doing so here.  Such alleged inactivity was insufficient to estop the government from enforcing the laws of the land.

135 F.Supp.2d 409, 00 Civ. 549 (S.D.N.Y., March 19, 2001)

Court holds that neither the Communications Decency Act or the First Amendment immunize an Internet hosting company from potential liability under the Lanham Act for hosting the website of a third party which allegedly infringed plaintiff's trademark. As a result, the court denied defendant Mindspring's motion to dismiss, and allowed Gucci to proceed with its claim that, by hosting a third parties' site containing allegedly infringing materials, despite notice of the same, Mindspring was guilty of direct or contributory trademark infringement and false designation of origin in violation of the Lanham Act, as well as violations of state trademark and unfair competition statutes.

2008 WL 618988, No. C 07-03967 MHP (N.D. Ca., March 4, 2008)

Court holds that the purported dispute resolution provisions contained in auction company’s online Terms and Conditions are unconscionable, and unenforceable against an individual dissatisfied with an auction in which she participated.  The dispute resolution provision mandated that the parties’ dispute be resolved in a binding proceeding before a representative of ‘In House Attorneys, P.C.’ in which each side was permitted only one hour to present their case, and could not call fact or expert witnesses nor be represented by counsel. 

As a result, the Court allowed plaintiff to proceed with claims against the defendant Hot Jewelry - who ran the auction - grounded on claims that defendant engaged in ‘shill bidding.’ 

Plaintiff was also allowed to proceed with claims against eBay as a result of her participation in this auction, via eBay’s Live Auction service.  In promoting this service, eBay claimed that “bidding on eBay Live Auctions is very safe.  All live auctions are run by reputable international auction houses, which are carefully screened by eBay before being authorized to sell to you.”  Notwithstanding the fact that eBay was responsible for this content, and derived a profit by promoting use of its Live Auction service, the Court held that it was immunized by application of the Communications Decency Act (“CDA”) from fraud and other claims arising out of so much of its promotional materials that advised consumers that eBay ‘carefully screened’ the auction houses allowed to participate in Live Auction.  The Court reasoned that to allow plaintiff to pursue such claims would expose eBay to “liabil[ity] for its exercise of a publisher’s traditional editorial functions” which is barred by the CDA.  As such, the Court barred plaintiff from pursuing claims that this representation was false because eBay allegedly did not ‘screen’ auction houses before permitting them to participate in such Live Auctions or because it knew that the auction house was engaged in illegal conduct – such as shill bidding – and failed to take appropriate steps in light thereof.   

The Court did permit plaintiff to proceed with claims arising out of eBay’s representation that such auctions were ‘safe,’ holding the same were not barred by application of the CDA because ‘eBay’s statements regarding safety affects and creates an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.’  Nor were such claims barred by application of eBay’s Live Auction User agreement, which immunized eBay from any disputes a consumer might have with the auction house itself, as this dispute arose out of eBay’s own purported misconduct – namely misrepresenting that the auction was ‘safe.’  Because plaintiff had failed to plead with the requisite particularity that she relied on this statement in deciding to participate in the auction in question, however, her fraud claim was dismissed with leave to replead.

No. 06-11888 (11th Circuit, August 1, 2006)

Eleventh Circuit holds that plaintiff's defamation claims against operators of consumer complaint sites arising out of the posting on those sites of allegedly defamatory complaints purportedly authored by third parties is sufficient to survive a motion to dismiss predicated on the immunity afforded the operators of interactive computer services under the Communications Decency Act ("CDA").  The complaint alleged that defendants edited consumer complaints to include words such as "ripoff" and "scam", and fabricated others.  The ultimate resolution of defendants' entitlement to immunity for their involvement in the publication of the posts at issue will have to await the trial of this matter.

As a result of this determination, the Eleventh Circuit reversed the decision of the District Court, which had dismissed the action for want of personal jurisdiction.  The lower court's decision was grounded on its determination that no tort was committed by defendants in Florida, due to the application of the CDA.   The Eleventh Circuit rejected this determination, and remanded the matter to the District Court to determine whether the Court could appropriately exercise personal jurisdiction over the defendants consistent with the strictures of the Due Process clause of the United States Constitution.

Quick Hits

Robert Anthony v. Yahoo! Inc.
421 F.Supp.2d 1257 (N.D. Ca. March 17, 2006)

Court holds that Communications Decency Act does not bar fraud and negligent misrepresentation claims advanced against Yahoo as a result of its alleged creation of false user profiles.  These false user profiles were allegedly included in online dating services Yahoo operates to cause users such as plaintiff to sign-up for, or renew their subscriptions to, the service.   The Court further held that the Communications Decency Act did not bar claims that asserted that Yahoo falsely represented to subscribers that various expired user profiles were in fact still current in an effort to cause them to continue their subscriptions.  Said the Court:

Anthony alleges that Yahoo creates false profiles, not merely fails to delete them. ... In addition, Anthony claims that Yahoo sends users false profiles for the purpose of luring them into renewing their subscriptions. ... No case of which this court is aware has immunized a defendant from allegations that it created tortious content. ... If, as Anthony claims, Yahoo manufactured false profiles, then it is an 'information content provider' itself and the CDA does not shield it from tort liability.  In addition, the CDA does not defeat Anthony's allegations that Yahoo sent 'profiles of actual legitimate former subscribers whose subscriptions had expired and who were no longer members of the service, to current members of the service.  Admittedly, third parties created there profiles.  Nevertheless, the CDA only entitles Yahoo not to be 'the publisher or speaker' of the profiles.  It does not absolve Yahoo from liability for any accompanying misrepresentations.  Because Anthony posits that Yahoo's manner of presenting the profiles - not the underlying profiles themselves - constitute fraud, the CDA does not apply.

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