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New Potential Liability for Internet Service Providers

By Stephanie Robinson

The U.S. District Court in New Hampshire recently issued a written opinion that undoubtedly will give some Internet service providers reason to re-think their policies with regard to some anonymous user accounts. In Doe v. Friendfinder Network, Inc., the plaintiff discovered prior to filing suit that an unnamed individual had created a number of profiles using information about the plaintiff?s identity on various social networking websites operated by the defendants and oriented toward people seeking sexual relationships with others. The plaintiff sued defendants on various state-law claims arising out of the allegedly false and unauthorized personal advertisements. In its opinion, the court addressed the defendants? motion to dismiss, which asserted that the plaintiffs? claims were barred by the Communications Decency Act of 1996. That Act provides, in 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,? which the Act further defines as ?any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.? The court held that the Act did work to bar all of the plaintiff?s state-law claims, except for one: invasion of privacy, to the extent that the plaintiff?s claim was based on the right of publicity. The court specifically looked to an exception in the Act, which provides: ?[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.? The court stated that a state-law right of publicity claim arises from a ?law pertaining to intellectual property,? and it further held that state-law intellectual property claims are within the scope of the Act?s exception. In so holding, the court expressly disapproved the 9th Circuit?s opinion in Perfect 10, Inc. v. CCBill, LLC, where it held last year that the exception only extended to claims based on violations of federal laws pertaining to intellectual property. The Friendfinder case may be one to watch for at least two reasons. First, it has the potential to set up a conflict between two federal circuits, which may help lead to or hasten review by the Supreme Court. (A petition for certiorari was denied following the 9th Circuit?s ruling in the CCBill case.) Second, if the trial court?s opinion in Friendfinder prevails, then Internet service providers ? especially those operating social networking sites (which now include heavy-hitters such as Facebook and Second Life) ? may face the daunting prospect of having to verify the validity of information entered in users? personal profiles in order to avoid exposure from state-law claims based on violation of a third party?s right of publicity. Such a precedent could mean significant changes to the way such sites operate today.

Full post as published by Business and Technology Law on May 14, 2008 (boomark / email).