Ninth Circuit Rules Online Matchmaking Service Statutorily Immune for Identity Theft of TV Actress

In what it called a case of “cruel and sadistic identity theft,” the Ninth Circuit ruled that an online matchmaking service, Matchmaker.com was statutorily immune from tort liability when a third party used the service to impersonate an actress. This impersonation resulted in sexual harassment of the actress that caused her to live in various hotels with her son for months given fear of her family’s safety.Actress Christianne Carafano, seen on TV shows General Hospital and Star Trek: Deep Space Nine under the name Chase Masterson, sued Matchmaker.com for invasion of privacy, misappropriation of the right of publicity, defamation, and negligence in California state court. Matchmaker.com removed the case to federal court in the Central District of California.

In this case, an unknown person located in Berlin impersonated the actress by submitting a profile that provided access to the actress’s name, home address, and phone number. In this profile, the unknown person also answered the Matchmaker.com questionnaire with sexually suggestive answers like “looking for a one-night stand” to the question, “Why did you call?” In the essay portion of the profile questionnaire, the impersonator stated that Carafano “liked sort of be[]ing controlled by a man, in and out of bed.”

Carafano soon after received two sexually explicit voice-mail messages, one highly threatening and sexually explicit fax that included a threat to harm her son, and fan letters expressing concern that the actress was giving out her home address while at the same time expressing interest in meeting her. Fearful, Carafano stayed in hotels with her son away from her home for several months.

The district court granted Matchmaker.com’s motion for summary judgment on all Carafano’s claims. Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055 (C.D. Cal. 2002). In its opinion, the lower court held that while Matchmaker.com was not immune from liability under 47 U.S.C. §230(c)(1) since the company provided part of the content to Carafano’s impersonated profile, Carafano nevertheless failed to demonstrate that Matchmaker.com was in fact liable.

Although the Ninth Circuit affirmed the district court ruling in favor of Matchmaker.com, it did so on different grounds. Central to its holding was the Ninth Circuit’s interpretation of the Communications Decency Act, 47 U.S.C. §230(c)(1). Passed in 1996, Congress declared it the “policy of the United States” to “promote the continued development of the Internet and other interactive computer services,” “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services,” and to “remove disincentives for the development and utilization of blocking and filtering technologies.” 47 U.S.C. §230(b)(1), (2), (4). As a result, the act immunizes interactive computer services from tort liability for the actions of its third party users. Information content providers, those that create or develop material for the internet, are not immune. In Carafano, the Ninth Circuit continued to follow the lead of other circuits, which have interpreted “interactive computer services” broadly and “information content providers” narrowly in order to achieve Congress’ goals to develop internet growth.

Given this, the Ninth Circuit held – contrary to the district court – that Matchmaker.com did not provide any content to the fake member profile at issue. While the Ninth Circuit agreed that interactive computer services can simultaneously be information content providers, it found that in for Matchmaker.com, this was not the case. The Circuit court based its rationale on its recent decision in Batzel v. Smith. 333 F.3d 1018 (9th Cir. 2003). In Batzel, the Circuit Court found that the publisher of an online newsletter was not a interactive content provider subject to tort liability under 47 U.S.C. §230(c)(1) when it selected and edited a potentially defamatory e-mail published in the newsletter. The court found that selecting and editing another’s e-mail for publication did not constitute “creation or development” of the e-mail within the definition of “information content provider.” Here, the court held that, like Batzel, Matchmaker.com merely facilitated the creation of the profile when it provided a questionnaire and a set of multiple choice, pre-prepared answers. This did not constitute creation or development.

Further, the Ninth Circuit also cited a California state court decision, Gentry v. Ebay, Inc. 121 Cal. Rptr 2d. 703 (Cal. Ct. App. 2002). The Ninth Circuit held that like Ebay’s merchant rating system, Matchmaker.com simply “compiled false or misleading content created by third parties.” The Circuit court stated the questionnaire and pre-prepared responses were designed to facilitate data management, which is necessary for the continued development of the internet, one of Congress’ intentions when it passed §230.

Finally, the Ninth Circuit concluded that even if Matchmaker.com was an “information content provider” as well as a “interactive service provider,” Matchmaker.com would still be immune since Matchmaker.com did not create or develop the particular information at issue in this case. It held that the third party user’s responses to the Matchmaker.com profile were only tenuously related to the questions asked in the questionnaire.

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The Ninth Circuit, affirming a decision from the Central District of California on different grounds, held that under 47 U.S.C. §230(c)(1), an online dating service was statutorily immune from tort liability when an unknown third party used the service to impersonate an actress, which caused the actress to fear for her safety. The Ninth Circuit held that the online dating service, by providing a questionnaire and pre-prepared answers to its users, was merely facilitating the actions of third parties. By providing a questionnaire and pre-prepared answers, the dating service had not become an “information content provider” that could be subject to tort liability. The court reasoned that creating a standardized questionnaire aids compilation of mass quantities of data, a process that is necessary for the continued growth of the internet. By compiling data, Matchmaker.com was only an “interactive service provider” immune from third party liability under §230(c)(1).

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003)

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