WikiCaseLaw

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIANNE CARAFANO, a/k/a ü
Chase Masterson,
Plaintiff-Appellant,
v. No. 02-55658
METROSPLASH.COM, INC., a ý D.C. No. Delaware corporation; LYCOS, INC., CV-01-00018-DT
a Delaware corporation; OPINION
MATCHMAKER.COM, INC., a Texas
corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued and Submitted
June 2, 2003—Pasadena, California
Filed August 13, 2003
Before: Sidney R. Thomas, Richard A. Paez, Circuit Judges,
and Edward C. Reed, Jr., District Judge.*
Opinion by Judge Thomas
*The Honorable Edward C. Reed, Jr., United States District Judge for
the District of Nevada, sitting by designation.
11225

OPINION
THOMAS, Circuit Judge:
This is a case involving a cruel and sadistic identity theft.
In this appeal, we consider to what extent a computer matchmaking
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 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, appear-
11228 CARAFANO v. METROSPLASH.COM, INC.
ance 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
CARAFANO v. METROSPLASH.COM, INC. 11229
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 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
11230 CARAFANO v. METROSPLASH.COM, INC.
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 under 47 U.S.C. § 230(c)(1) after finding that the
company provided part of the profile content. Id. at 1067-68.
However, the court rejected Carafano’s invasion of privacy
claim on the grounds that her home address was “newsworthy”
and that, in any case, Matchmaker had not disclosed her
address with reckless disregard for her privacy. Id. at 1069.
Similarly, the court rejected Carafano’s claims for defamation,
negligence, and misappropriation because she failed to
show that Matchmaker had acted with actual malice. Id. at
1073-76.
Carafano timely appealed. America Online, eBay, and two
coalitions of online businesses intervened to challenge the district
court’s construction of § 230(c)(1). Several privacy advocacy
groups and two organizations representing entertainers
intervened in support of Carafano.
II
[1] The dispositive question in this appeal is whether Carafano’s
claims are barred by 47 U.S.C. § 230(c)(1), which
states that “[n]o provider or user of an interactive computer
service shall be treated as the publisher or speaker of any
CARAFANO v. METROSPLASH.COM, INC. 11231
information provided by another information content provider.”
Through this provision, Congress granted most Internet
services immunity from liability for publishing false or
defamatory material so long as the information was provided
by another party. As a result, Internet publishers are treated
differently from corresponding publishers in print, television
and radio. See Batzel v. Smith, 333 F.3d 1018, 1026-27 (9th
Cir. 2003).
Congress enacted this provision as part of the Communications
Decency Act of 1996 for two basic policy reasons: to
promote the free exchange of information and ideas over the
Internet and to encourage voluntary monitoring for offensive
or obscene material. See id. at 1026-30 (recounting the legislative
history and purposes of this section). Congress incorporated
these ideas into the text of § 230 itself, expressly noting
that “interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation,”
and that “[i]ncreasingly Americans are relying on
interactive media for a variety of political, educational, cultural,
and entertainment services.” 47 U.S.C. § 230(a) (4), (5).
Congress declared it the “policy of the United States” to “promote
the continued development of the Internet and other
interactive computer services,” “to preserve the vibrant and
competitive free market that presently exists for the Internet
and other interactive computer services,” and to “remove disincentives
for the development and utilization of blocking and
filtering technologies.” 47 U.S.C. § 230(b)(1), (2), (4).
[2] In light of these concerns, reviewing courts have treated
§ 230(c) immunity as quite robust, adopting a relatively
expansive definition of “interactive computer service”1 and a
1“The term ‘interactive computer service’ means any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically
a service or system that provides access to the Internet and such systems
operated or services offered by libraries or educational institutions.” 47
U.S.C. § 230(f)(2).
11232 CARAFANO v. METROSPLASH.COM, INC.
relatively restrictive definition of “information content provider.”
2 Under the statutory scheme, an “interactive computer
service” qualifies for immunity so long as it does not also
function as an “information content provider” for the portion
of the statement or publication at issue.
[3] We recently considered whether § 230(c) provided
immunity to the operator of an electronic newsletter who
selected and published an allegedly defamatory e-mail over
the Internet. Batzel, 333 F.3d at 1030-32. We held that the online
newsletter qualified as an “interactive computer service”
under the statutory definition and that the selection for publication
and editing of an e-mail did not constitute partial “creation
or development” of that information within the
definition of “information content provider.” Although the
case was ultimately remanded for determination of whether
the original author intended to “provide” his e-mail for publication,
id. at 1035, the Batzel decision joined the consensus
developing across other courts of appeals that § 230(c) provides
broad immunity for publishing content provided primarily
by third parties. See Green v. America Online, 318 F.3d
465, 470-71 (3d Cir. 2003) (upholding immunity for the transmission
of defamatory messages and a program designed to
disrupt the recipient’s computer); Ben Ezra, Weinstein, & Co.
v. America Online Inc., 206 F.3d 980, 985-86 (10th Cir. 2000)
(upholding immunity for the on-line provision of stock information
even though AOL communicated frequently with the
stock quote providers and had occasionally deleted stock symbols
and other information from its database in an effort to
correct errors); Zeran v. America Online, 129 F.3d 327, 328-
29 (4th Cir. 1997) (upholding immunity for both initial publication
and delay in removal of false messages connecting
offensive tee-shirts to the plaintiff’s name and home telephone
number). As the Fourth Circuit has noted:
2“The term ‘information content provider’ means 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.” 47 U.S.C. § 230(f)(3).
CARAFANO v. METROSPLASH.COM, INC. 11233
Congress made a policy choice . . . not to deter
harmful online speech through the separate route of
imposing tort liability on companies that serve as
intermediaries for other parties’ potentially injurious
messages. Congress’ purpose in providing the § 230
immunity was thus evident. Interactive computer
services have millions of users. The amount of information
communicated via interactive computer services
is therefore staggering. The specter of tort
liability in an area of such prolific speech would
have an obvious chilling effect. It would be impossible
for service providers to screen each of their millions
of postings for possible problems. Faced with
potential liability for each message republished by
their services, interactive computer service providers
might choose to severely restrict the number and
type of messages posted. Congress considered the
weight of the speech interests implicated and chose
to immunize service providers to avoid any such
restrictive effect.
Zeran, 129 F.3d at 330-31 (citation omitted); see also Batzel,
333 F.3d at 1027 (quoting Zeran with approval). Under
§ 230(c), therefore, so long as a third party willingly provides
the essential published content, the interactive service provider
receives full immunity regardless of the specific editing
or selection process.
[4] 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. The
actual profile “information” consisted of the particular options
chosen and the additional essay answers provided. Matchmaker
was not responsible, even in part, for associating certain
multiple choice responses with a set of physical
characteristics, a group of essay answers, and a photograph.
11234 CARAFANO v. METROSPLASH.COM, INC.
Matchmaker cannot be considered an “information content
provider” under the statute because no profile has any content
until a user actively creates it.
As such, Matchmaker’s role is similar to that of the customer
rating system at issue in Gentry v. eBay, Inc., 121 Cal.
Rptr. 2d 703 (Cal. Ct. App. 2002). In that case, the plaintiffs
alleged that eBay “was an information content provider in that
it was responsible for the creation of information, or development
of information, for the online auction it provided
through the Internet.” Id. at 717. Specifically, the plaintiffs
noted that eBay created a highly structured Feedback Forum,
which categorized each response as a “Positive Feedback,” a
“Negative Feedback,” or a “Neutral Feedback.” Id. In addition,
eBay provided a color coded star symbol next to the user
name of a seller who had achieved certain levels of “Positive
Feedback” and offered a separate “Power Sellers” endorsement
based on sales volume and Positive Feedback ratings.
Id. The court concluded that § 230 barred the claims:
Appellants’ negligence claim is based on the assertion
that the information is false or misleading
because it has been manipulated by the individual
defendants or other co-conspiring parties. Based on
these allegations, enforcing appellants’ negligence
claim would place liability on eBay for simply compiling
false and/or misleading content created by the
individual defendants and other coconspirators. We
do not see such activities transforming eBay into an
information content provider with respect to the representations
targeted by appellants as it did not
create or develop the underlying misinformation.
Id. at 717-18. Similarly, the 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 misinformation.”
CARAFANO v. METROSPLASH.COM, INC. 11235
We also note that, as with eBay, Matchmaker’s decision to
structure the information provided by users allows the company
to offer additional features, such as “matching” profiles
with similar characteristics or highly structured searches
based on combinations of multiple choice questions. Without
standardized, easily encoded answers, Matchmaker might not
be able to offer these services and certainly not to the same
degree. Arguably, this promotes the expressed Congressional
policy “to promote the continued development of the Internet
and other interactive computer services.” 47 U.S.C.
§ 230(b)(1).
Carafano responds that Matchmaker contributes much more
structure and content than eBay by asking 62 detailed questions
and providing a menu of “pre-prepared responses.”
However, this is a distinction of degree rather than of kind,
and Matchmaker still lacks responsibility for the “underlying
misinformation.”
Further, even assuming Matchmaker could be considered
an information content provider, the statute precludes treatment
as a publisher or speaker for “any information provided
by another information content provider.” 47 U.S.C.
§ 230(c)(1) (emphasis added). The statute would still bar Carafano’s
claims unless Matchmaker created or developed the
particular information at issue. As the Gentry court noted,
[T]he fact appellants allege eBay is an information
content provider is irrelevant if eBay did not itself
create or develop the content for which appellants
seek to hold it liable. It is not inconsistent for eBay
to be an interactive service provider and also an
information content provider; the categories are not
mutually exclusive. The critical issue is whether
eBay acted as an information content provider with
respect to the information that appellants claim is
false or misleading.
11236 CARAFANO v. METROSPLASH.COM, INC.
121 Cal. Rptr. 2d at 717 n.11.
In this case, critical information about Carafano’s home
address, movie credits, and the e-mail address that revealed
her phone number were transmitted unaltered to profile viewers.
Similarly, 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. Thus Matchmaker did not play a significant role in creating,
developing or “transforming” the relevant information.
Thus, despite the serious and utterly deplorable consequences
that occurred in this case, we conclude that Congress
intended that service providers such as Matchmaker be
afforded immunity from suit. Thus, we affirm the judgment of
the district court, albeit on other grounds.3
AFFIRMED.
3The resolution of this case makes it unnecessary for us to address the
district court’s rationale, and nothing in this opinion should be construed
as approving or disapproving of it. For the same reason, we need not—and
do not—reach any other issue raised by the parties.
CARAFANO v. METROSPLASH.COM, INC. 11237