Doe v. Friendfinder Network, Inc.

• Court: U.S. District Court — District of New Hampshire
• Writing for the Court: Laplante
• Citation: Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288, 2008 DNH 58 (D. N.H. 2008)
• Decision Date: 27 March 2008
• Docket Number: Civil No. 07-cv-286.
• Parties: Jane DOE v. FRIENDFINDER NETWORK, INC. and Various, Inc.

540 F.Supp.2d 288

2008 DNH 058

Jane DOE v. FRIENDFINDER NETWORK, INC. and Various, Inc.

Civil No. 07-cv-286.

United States District Court, D. New Hampshire.

March 27, 2008.

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W.E. Whittington, Whittington Law Associates PLLC, Hanover, NH, for Jane Doe.

Ira P. Rothken, Jared R. Smith, Rothken Law Firm LLP, Novato, CA, James P. Bassett, Jeffrey C. Spear, Orr & Reno PA, Concord, NH, for Friendfinder Network, Inc. and Various, Inc.

ORDER

JOSEPH N, LAPLANTE, District Judge.

The plaintiff, proceeding pseudonymously, has sued defendants Friendfinder Network, Inc. and Various, Inc. on a number of claims arising out of the placement of allegedly false and unauthorized personal advertisements about her on their websites and others. The defendants move to dismiss the plaintiffs claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that they are barred by the Communications Decency Act of 1996, 47 U.S.C. § 230, and otherwise fail to state a claim for relief.

This court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1367 (federal question and supplemental jurisdiction) and 1332(a)(1) (diversity). The court heard oral argument on the motion on March 24, 2008. For the reasons set forth below, the motion is granted as to Counts II-VI and VIII of the complaint; granted as to Count I of the complaint except insofar as it asserts an intellectual property claim for violation of the plaintiffs right of publicity; and denied as to Count VII.

BACKGROUND

The defendant corporations operate a number of affiliated "web communities" where members can meet each other through online personal advertisements, including "AdultFriendFinder.com," which bills itself as "the World's Largest SEX and SWINGER Personal Community." To participate, a user registers by entering a variety of personal information, creating an on-line profile that can be viewed by other members of the community. Portions of these profiles, known as "teasers," also appear on Internet search engines and as advertisements on other websites unaffiliated with the defendants'.

In June 2005, a profile of a female member under the screen name "petra03755" was created on the AdultFriendFinder site. The profile identified the member as a recently separated 40-year old woman in the Upper Valley region of New Hampshire who was seeking "Men or Women for Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship."¹ To create the profile, "petra03755" entered a variety of information on her sexual proclivities into an on-line form provided by the website. She also provided biographical data, such as her birth date, height, build, and hair and eye color, and submitted a nude photograph, purportedly of herself.

The plaintiff alleges she had nothing to do with creating the profile, that she does not engage in the "promiscuous sexual lifestyle" or the "perverse" sexual activities it describes, and that the photograph does not depict her. Nevertheless, she claims that the biographical information and photo "reasonably identified" her as "petra03755" to people in her community. The plaintiff does not know the true identity of the user who created the profile — only that he or she accessed the AdultFriendFinder website through the Dartmouth College computer network using an e-mail address provided by Yahoo!. The plaintiff complains that the defendants "took special pains" to ensure the anonymity of those posting on the AdultFriendFinder site and did nothing to verify the accuracy of any of the information posted.

The plaintiff says that she did not learn of the profile until more than a year after its creation, when an acquaintance let on that she had been discussing it with other members of the plaintiffs circle who believed the profile to be hers. In the meantime, the plaintiff alleges, the profile deceived consumers into registering for the defendants' on-line dating service in order to meet her. After the plaintiff contacted the defendants about the offending profile, they agreed to remove it from the AdultFriendFinder site. As a result, when other members thereafter attempted to access the profile, the site displayed the message, "Sorry, this member has removed his/her profile." The plaintiff asserts that this message was itself false in communicating that she was a member of the service and that the profile had been hers in the first place.² She further faults the defendants for doing nothing to inform other users that the profile "had in fact been bogus and false."

For several months after the plaintiffs initial complaints, the profile allegedly continued to appear, with slight modifications, on other similar websites operated by the defendants.³ In addition, the defendants allegedly caused portions of the "petra03755" profile to appear as "teasers" on Internet search engines and advertisements on other third-party websites, including "sexually related" ones. The search engines retrieved the teasers when users entered search terms matching some of the information in the profile, including true biographical information about the plaintiff. The advertisements appeared when the third-party website recognized a user's location as near the Upper Valley region of New Hampshire. Through hyperlinks, these teasers and advertisements served to direct Internet traffic to, the defendants' own websites, allegedly increasing their profitability.

The plaintiffs complaint sets forth eight numbered counts against the defendants:

• Invasion of Property/Intellectual Property Rights" (Count I);

• Defamation (Count II);

• "Intentional/Negligent/Reckless Conduct" (Count III);

• "Dangerous Instrumentality/Product" (Count IV);

• Intentional infliction of emotional distress (Count V);

• Violation of the New Hampshire Consumer Protection Act, N.H.Rev. Stat. Ann. § 358-A (Count VI);

• False designations in violation of the Lanham Act, 15 U.S.C. 1051 et seq. (Count VII); and

• "Willful and Wanton Conduct" (Count VIII).

She claims a variety of harm: damage to her reputation; further alienation from her husband, embarrassment, loss of "important employment opportunities," resources expended investigating and rectifying the false profile, and emotional distress, including anxiety over the lingering effect of the false profile, which has allegedly necessitated psychological treatment. In addition to compensatory damages, the plaintiff seeks injunctive relief requiring the defendants to notify the public of the circumstances giving rise to the appearance of the profile on their websites, among other remedial measures.

ANALYSIS

I. Applicable legal standard

"A complaint should not be dismissed unless it is apparent beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Stanton v. Metro Corp., 438 F.3d 119, 123-24 (1st Cir.2006) (internal quotation marks omitted). In ruling on a motion to dismiss for failure to state a claim, the court must accept the well-pleaded factual allegations of the complaint as true, drawing all reasonable inferences in the plaintiffs favor. Id. at 123. Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.2005) (internal quotation marks omitted). The burden is on the defendant to make this showing. See, e.g., Directv, Inc. v. Treesh, 487 F.3d 471, 475 (6th Cir.2007), cert. pet. filed, No. 07-1004 (S.Ct. Jan. 31, 2008).

II. Whether the Communications Decency Act bars the plaintiff's state-law claims

Under the Communications Decency Act ("CDA"), "[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)(1), defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service," id. § 230(f)(3). The CDA further dictates that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Id. § 230(e)(3). These provisions bar state law claims against interactive computer services for publishing content obtained from another information content provider. See Universal Comm'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir.2007); see also Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir.2008); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1120 (9th Cir.2003); Green v. Am. Online (AOL), 318 F.3d 465, 470-71 (3d Cir.2003); Ben Ezra, Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir.2000); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir.1997). But the CDA also provides that it "shall [not] be construed to limit or expand any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2).

The defendants argue that all of the plaintiff's state law theories of recovery are barred by the CDA. The plaintiff responds that the Act does not bar her state law claims because (1) they arise out of the defendants' own statements, which are not protected by the Act, and (2) her claim for invasion of privacy is premised on a "law pertaining to intellectual property" unaffected by the Act. The Court will address these contentions in turn, assuming for purposes of the defendants' first argument that § 230(e)(2)'s "intellectual property exception" does not apply to the plaintiffs claims.

A. The state law claims (other than invasion of privacy)

In Universal, the First Circuit instructed that "Section 230 immunity should be broadly construed" so as to effectuate what it identified as "Congress's policy choice ... not to deter harmful online speech...