Academic

District Court Rules State ?Right of Publicity? and ?False Designation of Origin? claims are NOT barred by Section 230 of the Communications Decency Act

By Ann Bartow

This decision provides a mechanism for the victim of social networking bad actors to pursue a claim for damages against the site hosting the damaging material. A media account of the suit, captioned Jane Doe v. Friendfinder Network, Inc., explains:

A woman who lives somewhere near Dartmouth College is suing an online sex site, claiming it identified her in her area even though a nude photograph purporting to be her was not.

The woman, suing under the pseudonym “Jane Doe,” says her bogus profile had been on the site for more than a year when someone in her circle of friends told her they had believed it was her and had been discussing it.

The profile on [Adult Friend Finder dot com], which bills itself as the world’s largest community for sex and swingers, said she was seeking “men or women for erotic chat/e-mail/phone fantasies and discreet relationship.”

The profile was of a 40-year-old in the Upper Connecticut River Valley area who had recently separately from her husband, according to the U.S. District Court lawsuit against Friendfinder Network Inc. and Various Inc., an affiliated company.

The woman said all she knows about the creator of the bogus “petra03755″ profile - created in June 2005 - is he or she did it using the computer network at Dartmouth College in Hanover, whose zip code is 03755.

A federal judge this week threw out some of the woman’s claims, saying the companies are protected by a 12-year-old federal law that protects Internet service providers and interactive sites from liability for false postings by others. U.S. District Judge Joseph Laplante’s refusal to dismiss all the claims under the Communications Decency Act was an unusual first-round victory for a plaintiff. …

The judge explicitly criticized and rejected the Ninth Circuit’s ruling in Perfect 10 v. CC Bill (see also), writing:

Thus, even if it were free to disregard the plain language of § 230(e)(2), this court cannot accept the defendants’ claim at oral argument that allowing state-law intellectual property claims to survive the CDA would have a “devastating” impact on the internet. Despite the general consensus before the Perfect 10 decision that the CDA did not shield service providers from state intellectual property law, both the internet and so-called “e-commerce” remain alive and well, and show no signs of imminent collapse.

Via Anthony Falzone. When I find a direct link to the opinion I’ll post one.

–Ann Bartow

Full post as published by Feminist Law Professors on March 30, 2008 (boomark / email).