No CDA immunity for adult-oriented Web site in right of publicity case

Doe v. Friendfinder Network, Inc., — F.Supp.2d —-, No. 07-286, 2008 WL 803947 (D.N.H. March 28, 2008)

Plaintiff Doe learned that a nude image and some biographical information about herself had been used to set up a bogus profile on the adult-oriented personal-ad Web site Adult Friend Finder. She sued the operator of the site alleging a number of claims, like defamation and intentional infliction of emotional distress. She also alleged misappropriation of her right of publicity under state law, and false designation of origin and false advertising under the federal Lanham Act.

Adult Friend Finder moved to dismiss the claims, arguing that the Communications Decency Act (“CDA”) at 47 U.S.C. 230 immunized the site from liability for the information provided by someone other than the site operator. The court agreed with Adult Friend Finder as to the majority of the claims, holding that the claims were barred by the CDA where the plaintiff sought to impose liability on the site as the publisher or speaker of the information.

But the court held that the CDA did not immunize Adult Friend Finder from Doe’s state law claims for violation of the right of publicity, or for violation of the federal Lanham Act.

Section 230(e)(2) provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” You may recall that last year the Ninth Circuit [in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007)] held that 230(e)(2)’s restriction on immunity only applied to federal claims involving intellectual property (leaving state law claims barred).

The court in this case disagreed with the Ninth Circuit on this point, looking at the plain language of the statute and finding no meaningful distinction between state and federal causes of action involving intellectual property, especially given the presence of the word “any” when decribing “law[s] pertaining to intellectual property.”