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Don't Shoot the Messenger

The Communications Decency Act of 1996 states 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." 47 U.S.C. § 230(c). That apparent grant of immunity for "interactive computer services" -- generally, Internet service providers and interactive web-sites -- raises key questions: When is an interactive computer service deemed to be providing its own content and therefore stripped of this apparent immunity? And is this immunity really an immunity at all? Within the past few months, two federal circuit courts of appeal have rendered decisions implicating these questions.

Just a Matchmaker, Not a Content Provider

In Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), plaintiff Carafano, an actress who goes by the stage name of Chase Masterson, discovered that someone had created a false profile based on her identity on Matchmaker.com, a dating web-site. Id. at 1121. This unknown person (using a computer in Berlin) created a profile for "Chase529," which was comprised of several photographs of Carafano, her address, a listing of several of her movies, and answers to Matchmaker.com's questionnaire. The Matchmaker.com questionnaire typically asked more than 50 questions, some of which dealt with the subject's interests and appearance and others of which were more suggestive in nature. In this case, the false profile's responses stated that Chase529 was "looking for a one-night stand," had a "strong sexual appetite," and made additional comments of a sexual nature. Id. The false profile included a contact e-mail address which, when contacted, triggered an automatic e-mail reply which stated: "You think you are the right one? Proof it !!" [sic] The reply e-mail then provided Carafano's home telephone number. Id.

When Carafano began receiving responses to the false profile, she became alarmed and eventually felt unsafe in her home. Id. at 1122. She prevailed upon Matchmaker.com to remove the profile and then sued the company for invasion of privacy, misappropriation of the right of publicity, defamation, and negligence. Id. In deciding the case, the Central District of California rejected the defendants' argument that the Communications Decency Act provided immunity. Id. Instead, the court concluded that, because Matchmaker.com's questionnaire elicited responses from users, Matchmaker.com was a content-provider, and therefore not entitled to statutory immunity. Despite this finding, the district court granted summary judgment for the defendants, ruling that they had not acted with actual malice. Id.

The Ninth Circuit affirmed, but on the very grounds rejected by the district court: it ruled that Matchmaker.com was not a content-provider and consequently was entitled to statutory immunity. Id. at 1125. In arriving at this conclusion, the court rejected the contention that Matchmaker.com's issuance of its questionnaire required a different result. Id. at 1124. To the contrary, though "the questionnaire facilitated the expression of information by individual users . . . the selection of the content was left exclusively to the user." Id. In the court's view, the user -- not Matchmaker.com -- controlled the manner in which essay answers, multiple choice responses, and photographs were synthesized. Id. Therefore, Matchmaker.com was not a content provider and would receive § 230 immunity.

Finally, the court ruled that, even if Matchmaker.com were considered a content provider, it would still be entitled to immunity because it was not the content provider of the information giving rise to liability. Id. at 1125. To the contrary, the court reasoned, Matchmaker.com did not alter Carafano's home address and phone number. Id. Moreover, the most sexually suggestive essay answers were not even responsive to the questions posed by Matchmaker.com. In short, the web-site "did not play a significant role in creating, developing or 'transforming' the relevant information." Id. Therefore, because Matchmaker.com was not a content provider of the offending information, it could not be treated as a publisher or speaker of that information, and merited immunity.

Before Immunity, Tenable Theory of Recovery

In Doe v. GTE Corp., 2003 WL 22389811 (7th Cir., Oct. 21, 2003), the Seventh Circuit also addressed a case potentially implicating the scope of § 230 immunity. In GTE, the plaintiffs were inter-collegiate athletes who had been videotaped without their consent as they used locker-rooms, bathrooms and shower facilities. Id. at *1. The videotapes of the athletes were then sold on the Internet. Id. The plaintiff athletes initiated suit against not only the makers of the videotapes, but also GTE, the company that provided Internet access and web-hosting services to the videotape sellers. Id.

On summary judgment, the district court ruled in favor of GTE, finding that the company was entitled to statutory immunity. The Seventh Circuit affirmed, but did not render a conclusion about the scope of § 230 immunity. Id. at *5-6. Instead, the court rejected plaintiff's state law theories of "public nuisance" and "negligent entrustment of chattel." Id. The court did intimate, however, that blanket immunity for interactive computer services was only one possible explanation of the meaning of § 230. Id. at *2-4.