Citation Edit

Carafano v., Inc., 339 F.3d 1119 (9th Cir. 2003) (full-text).

Factual Background Edit “members” post profiles of themselves, hoping to find others with similar interests and desires. In 1999, a profile for by actress Chase Masterson showed up on, but she wasn’t the one who posted it, nor was the information the type she would have posted. The bogus profile included her actual home address, and revealed that she lived alone with her young son. What’s more, it said she was “looking for a one-night stand” with someone who has a “strong sexual appetite.”

Masterson never learned who posted the phony profile, and so couldn't sue him or her. She was, however, able to sue the owner of, and she did, for invasion of privacy, defamation, misappropriation of right of publicity, and negligence. She claimed that’s conduct constituted “cruel and sadistic identity theft” with “serious and utterly deplorable consequences.”

Trial Court Proceedings Edit responded to Masterson’s lawsuit with a motion for summary judgment. Federal District Judge Tevrizian rejected Matchmaker’s argument that the Section 230 of the Communications Decency Act (CDA) gave it immunity. He concluded that Matchmaker was an “information content provider,” because the profiles posted by its members respond to more than five dozen questions written by Matchmaker, so Matchmaker was not entitled to immunity.

But he agreed with Matchmaker that it wasn’t liable to the actress. He ruled that was not liable for invading Masterson's privacy, because her home address was not a "private matter." Moreover, since did not know the offending posting was phony until notified by Masterson, did not publish her address with reckless disregard for the fact that reasonable men would find the invasion highly offensive.

Also, since did not know the offending posting was phony, it did not publish the defamatory material with reckless disregard. And since the posting was not commercial speech, Masterson's right of publicity claim failed for lack of actual malice. Finally, the judge dismissed Masterson's negligence claim, because it could not succeed in the absence of a valid defamation claim.

Appellate Court Proceedings Edit

On appeal, Judge Thomas never reached the merits of Masterson’s claims. (In fact, in a footnote,Judge Thomas emphasized that “nothing in [his opinion] should be construed as approving or disapproving” of Judge Tevrizian’s “rationale.”) Instead, Judge Thomas affirmed Matchmaker’s victory on the grounds that Section 230 of the Communications Decency Act does provide it with immunity, just as Matchmaker originally argued.

One section of the CDA makes computer service providers immune from liability for information provided by others. That much of the law helped Matchmaker, because it is a computer service provider. However, another section of the Act takes away that immunity if the service provider also provides “information content” itself.

The Court of Appeals disagreed with the trial court’s conclusion that Matchmaker was an “information content provider.” Judge Thomas reasoned that although

some of the content was formulated in response to Matchmaker’s questionnaire . . . the selection of the 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.

What’s more, Judge Thomas found, “none of [the most offensive information posted] bore more than a tenuous relationship to the actual questions asked.”

Judge Thomas also noted that even if Matchmaker could be considered an information content provider, another provision of the Act says that computer service providers are not liable for “any information provided by another information content provider.” In this case, the offending information was provided by someone other than Matchmaker, so the “statute would still bar [Masterson’s] claims. . . .”

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