Doe v. Friendfinder Network

Citation
Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (full-text).

Factual Background
Defendant Friendfinder Network, Inc. operates various online adult communities connecting members through online personal ads. In order to participate, users register on the websites and provide personal information, creating an online profile. Portions of the profiles (“teasers”) appear on search engines and as advertisements on other websites.

In June 2005, a profile was created under the user name “petra03755.” Among other characteristics, the profile indicated that the member was a separated woman, 40 years old, and lived in the Upper Valley of New Hampshire.

Plaintiff, proceeding using the pseudonym “Jane Doe” asserts that the biographical information displayed on the website, as well as a nude photograph, reasonably identify her as “petra03755.” She alleges that acquaintances have discovered this profile and believe it to be her. She did not create this profile herself and demands that it be removed from the website.

Plaintiff contacted defendant, who agreed to remove the profile. After doing so, when a member attempted to access the profile, the following message was displayed: “Sorry, this member has removed his/her profile.” Plaintiff argues that this message is false, and makes people believe that she was once a member of defendant’s website.

Despite the false profile’s removal from the Friendfinder website, it continued to appear for several months on other websites and in teasers on search engines.

== Trial Court Proceedings

Plaintiff brought suit alleging the following:

(1)	Invasion of Property / Intellectual Property rights, (2)	defamation, (3)	intentional/negligent/reckless conduct, (4)	dangerous instrumentality/product, (5)	intentional infliction of emotional distress, (6)	violation of New Hampshire Consumer Protection Act, (7)	false designations in violation of Lanham Act, and (8)	willful and wanton conduct.

Defendant moved to dismiss based on Section 230 of the Communications Decency Act.

The District Court granted defendant’s motion to dismiss on all counts except (1) Invasion of Property / Intellectual Property rights and (7) false designations in violation of Lanham Act.

Defendant is protected by Section 230 of the Communications Decency Act because it is only the publisher of information provided by another information content provider. The only role Defendant played in the initial appearance of the profile was as the publisher of information supplied by petra03755. Even though plaintiff argues that Defendant is liable for facilitating the submission of false or unauthorized profiles, such information does not bar Defendant from Section 230 protection, because doing so would “eviscerate Section 230 liability.”

Furthermore, defendant is not liable for republishing parts of the profile in “teasers.” “Section 230 immunity depends on the source of the information in the allegedly tortuous statement, not on the source of the statement itself. Because ‘petra03755’ was the source of the allegedly injurious matter in the profile, then, the defendants cannot be held liable for ‘reposting’ the profile elsewhere.” Defendant is also not liable for reposting the profile with slight modifications, since these modifications are part of the defendant’s “traditional editorial functions.”

Section 230 protection also extends to the defendant’s decisions about how to treat posts, so the defendant is not liable for the misleading message displayed after the profile was removed.

In other words, the court did not dismiss the assertion of violation of the right to publicity with regard to the claim for Invasion of Property/ Intellectual Property rights because its rationale was such that the plaintiff’s claim was a state IP claim, and that state IP claims are not preempted by Section 230.