Yahoo Loses 230 Defense for its Dating Site–Anthony v. Yahoo

By Eric Goldman

Anthony v. Yahoo! Inc., 2006 WL 708572 (N.D. Cal. March 17, 2006)

Anthony subscribed to Yahoo’s dating subscription services. He claims that Yahoo creates false personal profiles and retains expired profiles to make the subscription service look more attractive to existing subscribers. He is the named plaintiff in this putative class action, claiming (among other things) that, based on this behavior, Yahoo engages false and negligent misrepresentation and deceptive/unfair trade practices.

Yahoo moves to dismiss those claims under 47 USC 230. The court rejects Yahoo’s motions for two reasons. First, the complaint alleges that Yahoo creates the false profiles, so Yahoo (and not a third party) is the information content provider of those profiles.

Second, Yahoo sends subscribers the expired profiles. Though the profiles are created by its users, Yahoo (not the users) create the false perception that the profiles are valid. Thus, Yahoo can’t claim the 230 immunity for creating that impression.

Normally, I never meet a 230 defense that I don’t like. So it may surprise you that I think the court rightly rejected the 230 claim. Certainly, 230 on its face does not apply to the allegation that Yahoo created profiles itself. Note to plaintiffs: you should always be able to survive a 230 motion to dismiss by claiming that the online service provider itself solely created the content in question. (See the analogous ruling in the Hy Cite case). Of course, these allegations are subject to Rule 11, so plaintiffs need to be able to support these factual assertions.

The liability for false impressions about expired profiles presents a closer question. I can see some room for mischief if plaintiffs can claim that they are suing the service provider based on some false metadata where the underlying data was user-generated and covered by 230. However, if Yahoo falsely claims that profiles are valid when it knows they are expired, Yahoo–and not its users–is taking the legally significant act and should bear the consequences accordingly.

As usual, this ruling on the motion to dismiss doesn’t represent the end of Yahoo’s defenses. Therefore, we can’t make any inferences about the plaintiffs’ ultimate likelihood of success.