• Well-Known Internet Dating Service Entitled To Immunity In Privacy Case
  • September 29, 2003
  • Law Firm: Graydon Head & Ritchey LLP - Cincinnati Office
  • Does an online dating service qualify for the immunity from suit provided to "interactive service providers," under the 1996 Communications Decency Act (CDA)? According to the United States Court of Appeals for the Ninth Circuit, the answer is yes.

    Matchmaker.com operates a commercial Internet dating service. As part of the service, members complete a detailed questionnaire, including some open-ended essay questions, and submit a photograph. Other members then have access to the profile. In this case, an unknown user in Berlin responded to the questionnaire with false, sexually provocative answers and attached several photographs of actress Christianne Carafano. When other members sent an e-mail to the contact address appearing in the phony profile, an automatic response was generated that contained the actress's home address and phone number. Carafano received several sexually explicit phone calls and a threatening fax. Upon learning of the source of the calls, Carafano contacted Matchmaker.com who shortly thereafter blocked the profile from public view.

    Carafano sued Matchmaker.com for, among other things, invasion of privacy. At trial, Matchmaker.com asserted the immunity defense under the CDA. Under the CDA, where a service provider "willingly provides the essential published content," it can still claim immunity, but only where the interactive service provider "does not play a significant role in creating, developing or transforming" the relevant information. The trial court rejected Matchmaker.com's immunity defense because Matchmaker.com provided part of the profile content.

    On appeal, the issue for the court was whether Matchmaker.com's questionnaire should be considered part of the offensive content and deprive it of the immunity defense. The court found that Matchmaker.com was not an "information content provider, and was entitled to immunity." The appeals court noted:

    "So long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.

    "The fact that some of the content was formulated in response to Matchmaker's questionnaire does not alter this conclusion. Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of content was left exclusively to the user... Matchmaker cannot be considered an 'information content provider' under the statute because no profile has any content until a user actively creates it."

    The appellate court relied in part on a previous action involving eBay. There the court of appeals concluded that the CDA immunity provision protected eBay from liability for publishing allegedly misleading information contained in a color coded symbol system for rating sellers based on user feedback. The court refused to hold eBay liable "for simply compiling false and/or misleading content" created by third parties as eBay "did not create or develop the underlying misinformation."

    The Matchmaker.com court analogized eBay's situation to Matchmaker.com's situation. Similarly, the fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a "developer" of the "underlying misinformation."

    But even if Matchmaker.com could be considered an "information content provider," the court reasoned that the CDA would still bar the claims because Matchmaker did not create or develop the particular content for which Carafano sought to hold it liable.

    Thanks to its immunity provision, the CDA and the Matchmaker.com dating service are a perfect match!