47 USC 230 Trifecta of Cases–Friendfinder, e360insight, iBrattleboro
By Eric Goldman
47 USC 230 cases have been coming at such a rapid clip that I’ve fallen behind. In this blog post, I’ll catch up on three recent cases:
Doe v. Friendfinder Network, Inc., 2008 WL 803947 (D.N.H. March 27, 2008)
This case involves the publication of a false user-supplied profile on adult dating/hook-up services operated by AdultFriendfinder and Various. Fake dating profiles have been the source of a fair amount of 230 litigation; see, e.g., the Anthony v Yahoo, Landry-Bell v. Various, Doe v. SexSearch, Barnes v. Yahoo, and of course the Carafano case. The Friendfinder case involves two allegations we haven’t seen before: (1) when the plaintiff complained, the sites removed the profile but displayed the following message on the profile page: “Sorry, this member has removed his/her profile,” which allegedly implied that the plaintiff in fact had authorized the page initially, and (2) portions of the fake profile had been displayed on third party sites as “teasers” to advertise the adult dating services.
The court quickly dismisses the defamation, intentional infliction of emotional distress and various soft tort claims per 230, even if the defendants affirmatively reposted the profiles and even with respect to pull-down menus used to help profile building. This opinion came out before the Ninth Circuit en banc ruling in Roommates.com, but taking Kozinski’s disclaimers at face value, the discussion about pull-down menus should have survived Roommates.com.
The court also says that 230 protects the site-authored announcement on the removed profile because “the allegedly tortious nature of those statements proceeds solely from the association they create between the plaintiff and the content of the profile.” This might be an important standard to help future courts determine when 230 governs allegations of false marketing representations predicated on bad user info.
The court takes a less defense-favorable direction regarding the right of publicity claim. In direct conflict with the Ninth Circuit’s ccBill ruling, this court says that 230 does not preempt state IP claims. Personally, I think this court got the statutory construction right and the Ninth Circuit got it wrong. As this court correctly explains, a court cannot interpolate the word “federal” into 230(e)(2) if it uses intellectually rigorous statutory interpretation.
Having left open the state IP claims, the court (also correctly, IMO) says that a right of publicity claim is an IP claim while any other invasion of privacy claim (i.e., the other three prongs of Prosser’s four privacy torts) is not.
The court also survives the plaintiff’s allegation of a Lanham Act false designation of origin claim with respect to the use of the false profile in the advertising teasers. But why didn’t the court examine the application of 230 to this Lanham Act provision, which arguably isn’t an IP claim? I think the court considered the false designation of origin claim, as applied to a false endorsement, to be equivalent to a right of publicity claim, but it would have been nice for the court to unpack this assumption.
The litigation over teaser content raises a question that’s been bothering me for some time–when is republication of user-supplied editorial content (in this case, the dating profile) as teaser content on third party websites legally governed as commercial advertising? Teaser editorial content is ubiquitous, but it also serves a marketing function that could (should?) be regulated by commercial advertising restrictions such as the right of publicity. Hey, if you’re looking for a paper topic, I think this issue (use of user content in teaser content as a right of publicity issue) is a good one.
More discussion about this case: CMLP, Rebecca, Jeff Neuburger, John Leonard
e360Insight, LLC v. Comcast Corp., 2008 WL 1722142 (N.D. Ill. April 10, 2008)
e360 is an email marketer/alleged spammer. Comcast blocks their emails from getting to Comcast subscribers. e360 sues Comcast for a variety of torts. The court sweeps all of the claims away on a judgment on the pleadings per 230(c)(2), saying that spam filtering constitutes the blocking of objectionable content contemplated by the statute. Further, agreeing with the Kaspersky case, the court says that any good faith requirement in the statute is subjective, not objective, and e360 didn’t plead any evidence of subjective bad faith. Case dismissed.
This opinion adds to the burgeoning caselaw under 230(c)(2) showing that it will crunch claims by anyone upset that their communications are being filtered. As applied to an IAP like Comcast, I think this raises an interesting angle in the net neutrality debate. If you’re looking for a paper topic, it seems like it would be timely to recap 230(c)(2) jurisprudence and analyze its interplay with other speech-preserving doctrines (must-carry laws, Constitutional free speech restrictions, net neutrality, consumer protection requirements of disclosure, etc.).
Mayhew v. Dunn, 580-11-07 (Vt. Superior Ct. March 18, 2008)
This is a simple and clean opinion. The defendants operate the iBrattleboro.com website. A third party posted material to the website that allegedly harmed the plaintiff. The website operators get a judgment on the pleadings. Case dismissed. This is a nice illustration of 230 working exactly as it should. Some useful color on the case from CMLP.