Internet service providers and Web operators cannot be held liable for their customers' abuses like phony content publishing, a 9th Circuit Court of Appeals panel ruled August 13. That partially overturns a lower federal court which ruled earlier that dating site Matchmaker had responsibility for a false and sexually explicit profile purported to be of actress Chase Masterson.
Writing for the panel, Judge Sidney R. Thomas said Congress intended clearly enough, when writing the Communications Decency Act, that ISPs and Web operators should not be considered the actual content authors, especially in cases like this where a user creates a fake profile of someone else.
"(T)he 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 information'," wrote Judge Sidney R. Thomas in the ruling opinion.
A lower court had ruled earlier that Matchmaker and its operator, Metrosplash, were liable on grounds that the posting was interactive. That court also turned down Masterson's charges of defamation, negligence, and misappropriation, because she didn't show the dating site itself acted with malice.
But Marquette University Law School assistant professor Eric Goldman said the 9th Circuit Court ruling shuts a loophole in the Communications Decency Act. "The district court opinion suggested that Web sites integrally involved in content creation could be treated as the content provider and thus lose the statutory immunity," he told reporters when reached for comment on the case. "Here, the 9th Circuit raises the bar on that approach substantially. It also provides valuable and helpful breathing space for lots of Web sites that help users structure the publication of content."
Masterson, whose real name is Christianne Carafano, and whose credits include the popular soap opera General Hospital and the role of Leeta in television's Star Trek: Deep Space Nine, never gave her permission for any profile of her to appear on Matchmaker, never mind the one in question. The profile "directly reproduced the most sexually suggestive comments in the essay section, none of which bore more than a tenuous relationship to the actual questions asked," Thomas wrote.
The unknown Matchmaker user posted a profile for "Chase529," giving apparently innocuous answers to some routine questions but choosing "Playboy/Playgirl" for "main source of current events" and "looking for a one-night stand" for "Why did you call," and suggested "Chase529" sought a "hard and dominant man" with "strong sexual appetite." The user didn't use a surname for "Chase529," nor did the user include Masterson's actual surname, but did include actual photographs of her and listed two of her actual film credits.
Case documents indicate Masterson's assistant, Siouxan Perry, discovered the phony profile in November 1999, a month after it first turned up on Matchmaker, and exchanged e-mails with "Jeff," whose message tipped the woman off to the fake profile. Masterson then instructed her aide to contact Matchmaker and demand the profile be pulled.
The aide couldn't do it, the documents added, because Perry herself hadn't posted the profile, but the following day Matchmaker blocked the profile and deleted it entirely a day later.
"So long as a third party willingly provides the essential published content, the interactive computer service receives full immunity regardless of the specific editing or selection process," Thomas wrote. "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 the content was left exclusively to the user."
Masterson and her attorneys have yet to comment or say whether they'll appeal.
