No CDA immunity for adult-oriented Web site in right of publicity case

Doe v. Friendfinder Network, Inc., — F.Supp.2d —-, No. 07-286, 2008 WL 803947 (D.N.H. March 28, 2008)

Plaintiff Doe learned that a nude image and some biographical information about herself had been used to set up a bogus profile on the adult-oriented personal-ad Web site Adult Friend Finder. She sued the operator of the site alleging a number of claims, like defamation and intentional infliction of emotional distress. She also alleged misappropriation of her right of publicity under state law, and false designation of origin and false advertising under the federal Lanham Act.

Adult Friend Finder moved to dismiss the claims, arguing that the Communications Decency Act (“CDA”) at 47 U.S.C. 230 immunized the site from liability for the information provided by someone other than the site operator. The court agreed with Adult Friend Finder as to the majority of the claims, holding that the claims were barred by the CDA where the plaintiff sought to impose liability on the site as the publisher or speaker of the information.

But the court held that the CDA did not immunize Adult Friend Finder from Doe’s state law claims for violation of the right of publicity, or for violation of the federal Lanham Act.

Section 230(e)(2) provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” You may recall that last year the Ninth Circuit [in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007)] held that 230(e)(2)’s restriction on immunity only applied to federal claims involving intellectual property (leaving state law claims barred).

The court in this case disagreed with the Ninth Circuit on this point, looking at the plain language of the statute and finding no meaningful distinction between state and federal causes of action involving intellectual property, especially given the presence of the word “any” when decribing “law[s] pertaining to intellectual property.”

Communications Decency Act shields web host as “distributor” of defamatory content

Plaintiff Austin, the owner of a travel-related business, accused the owner of one of his business’s competitors of posting defamatory content on the competitor’s website. Austin filed a defamation lawsuit against the company that hosted the website, claiming that it was liable for refusing to take down the alleged defamatory statements.

The web hosting company successfully moved for summary judgment, citing to 47 U.S.C. §230, a portion of the Communications Decency Act of 1996 which provides, in relevant part, that “[n]o 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.” Austin sought review of the trial court’s decision.

Austin argued that the plain language of §230 provides a shield only for liability that would result from being a publisher of defamatory material. Because the web hosting company was a distributor of defamatory content, Austin argued, §230 should not apply, and thus the lower court erred in granting summary judgment on that basis.

The appellate court rejected Austin’s argument, relying heavily on the decision of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir., 1997). As in Zeran, the court found that Congress had spoken directly to the issue by “employing the legally significant term ‘publisher,’ which has traditionally encompassed distributors and original publishers alike.” The court held that because distributor liability is a subset of publisher liability, it is therefore specifically foreclosed by § 230.

Austin v. CrystalTech Web Hosting, 125 P.3d 389, 2005 WL 3489249 (Ariz. App. Div. 1, December 22, 2005).

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