Carafano v. Metrosplash.Com. Inc.

• Decision Date: 13 August 2003
• Docket Number: No. 02-55658.,02-55658.
• Parties: Christianne CARAFANO, a/k/a Chase Masterson, Plaintiff-Appellant, v. METROSPLASH.COM, INC., a Delaware corporation; Lycos, Inc., a Delaware corporation; Matchmaker.com, Inc., a Texas corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

339 F.3d 1119 Christianne CARAFANO, a/k/a Chase Masterson, Plaintiff-Appellant,
v.
METROSPLASH.COM, INC., a Delaware corporation; Lycos, Inc., a Delaware corporation; Matchmaker.com, Inc., a Texas corporation, Defendants-Appellees. No. 02-55658. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 2003. Filed August 13, 2003.

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Stephen F. Rohde and Mechele M. Berencsi, Rohde & Victoroff, Los Angeles, California, for the appellant.

Timothy L. Alger, Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, California, for the appellee.

Patrick J. Carome, Samir Jain, and C. Colin Rushing; Wilmer Cutler & Pickering, Washington, DC; for amici curiae America Online, Inc., eBay, Inc., the Internet Commerce Coalition, and the United States Internet Service Provider Association. Laura A. Heymann, America Online, Inc., Dulles, Virginia; Michael J. Richter and Tod Cohen, eBay, Inc., San Jose, California; James J. Halpert, Piper Rudnick, LLP, Washington, DC; and Stewart A. Baker, Steptoe & Johnson, Washington, DC, were also on the brief.

Deborah Pierce and Linda Ackerman, Privacyactivism, San Francisco, California, for amici curiae The American Federation of Television and Radio Artists (AFTRA), Gavin De Becker, Privacyactivism, Privacy Rights Clearinghouse, and the Screen Actors Guild (SAG).

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-01-00018-DT.

Before THOMAS, PAEZ, Circuit Judges, and REED, District Judge.^*

THOMAS, Circuit Judge.

This is a case involving a cruel and sadistic identity theft. In this appeal, we consider to what extent a computer match making service may be legally responsible for false content in a dating profile provided by someone posing as another person. Under the circumstances presented by this

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case, we conclude that the service is statutorily immune pursuant to 47 U.S.C. § 230(c)(1).

I

Matchmaker.com is a commercial Internet dating service. For a fee, members of Matchmaker post anonymous profiles and may then view profiles of other members in their area, contacting them via electronic mail sent through the Matchmaker server. A typical profile contains one or more pictures of the subject, descriptive information such as age, appearance and interests, and answers to a variety of questions designed to evoke the subject's personality and reason for joining the service.

Members are required to complete a detailed questionnaire containing both multiple-choice and essay questions. In the initial portion of the questionnaire, members select answers to more than fifty questions from menus providing between four and nineteen options. Some of the potential multiple choice answers are innocuous; some are sexually suggestive. In the subsequent essay section, participants answer up to eighteen additional questions, including "anything that the questionnaire didn't cover." Matchmaker policies prohibit members from posting last names, addresses, phone numbers or e-mail addresses within a profile. Matchmaker reviews photos for impropriety before posting them but does not review the profiles themselves, relying instead upon participants to adhere to the service guidelines.

On October 23, 1999, an unknown person using a computer in Berlin posted a "trial" personal profile of Christianne Carafano in the Los Angeles section of Matchmaker. (New members were permitted to post "trial" profiles for a few weeks without paying.) The posting was without the knowledge, consent or permission of Carafano. The profile was listed under the identifier "Chase529."

Carafano is a popular actress. Under the stage name of Chase Masterson, Carafano has appeared in numerous films and television shows, such as "Star Trek: Deep Space Nine," and "General Hospital." Pictures of the actress are widely available on the Internet, and the false Matchmaker profile "Chase529" contained several of these pictures. Along with fairly innocuous responses to questions about interests and appearance, the person posting the profile selected "Playboy/Playgirl" for "main source of current events" and "looking for a one-night stand" for "why did you call." In addition, the open-ended essay responses indicated that "Chase529" was looking for a "hard and dominant" man with "a strong sexual appetite" and that she "liked sort of be[]ing controlled by a man, in and out of bed." The profile text did not include a last name for "Chase" or indicate Carafano's real name, but it listed two of her movies (and, as mentioned, included pictures of the actress).

In response to a question about the "part of the LA area" in which she lived, the profile provided Carafano's home address. The profile included a contact e-mail address, cmla2000@yahoo.com, which, when contacted, produced an automatic e-mail reply stating, "You think you are the right one? Proof it!!" [sic], and providing Carafano's home address and telephone number.

Unaware of the improper posting, Carafano soon began to receive messages responding to the profile. Although she was traveling at the time, she checked her voicemail on October 31 and heard two sexually explicit messages. When she returned to her home on November 4, she found a highly threatening and sexually explicit fax that also threatened her son. Alarmed, she contacted the police the following

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day. As a result of the profile, she also received numerous phone calls, voicemail messages, written correspondence, and e-mail from fans through her professional e-mail account. Several men expressed concern that she had given out her address and phone number (but simultaneously expressed an interest in meeting her). Carafano felt unsafe in her home, and she and her son stayed in hotels or away from Los Angeles for several months.

Sometime around Saturday, November 6, Siouxzan Perry, who handled Carafano's professional website and much of her e-mail correspondence, first learned of the false profile through a message from "Jeff." Perry exchanged e-mails with Jeff, visited the Matchmaker site, and relayed information about the profile to Carafano. Acting on Carafano's instructions, Perry contacted Matchmaker and demanded that the profile be removed immediately. The Matchmaker employee indicated that she could not remove the profile immediately because Perry herself had not posted it, but the company blocked the profile from public view on Monday morning, November 8. At 4:00 AM the following morning, Matchmaker deleted the profile.

Carafano filed a complaint in California state court against Matchmaker and its corporate successors, alleging invasion of privacy, misappropriation of the right of publicity, defamation, and negligence. The defendants removed the case to federal district court. The district court granted the defendants' motion for summary judgment in a published opinion. Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055 (C.D.Cal.2002). The court rejected Matchmaker's argument for immunity...