Privacy Lawyer & Attorney : Proskauer Rose Law Firm : CAN-SPAM, FCRA, FACTA

On May 16, 2008 the U.S. Court of Appeals for the Fifth Circuit agreed with a number of other courts, holding that the Communications Decency Act (“CDA”) (47 U.S.C. Sec. 230) protects social networking websites from liability with respect to negligence claims based on third-party content published on the website and the consequences stemming from such content. In Doe v. MySpace, Inc., No. 07-50345, 2008 WL 2068064 (5th Cir. May 16, 2008), the plaintiff argued that MySpace negligently failed to implement appropriate technological safeguards to prevent the plaintiff, a 13-year-old, from registering on MySpace. The plaintiff lied in her registration materials, pretending to be 18 years old, and ignored MySpace’s warnings against sharing personal information on the website by posting her phone number. According to the plaintiff, the technological safeguards would have prevented her from meeting and being sexually assaulted by another MySpace user.

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Website Operator Can Be Held Liable for State Intellectual Property Violations

A federal district court in New Hampshire recently ruled that Section 230 of the Communications Decency Act of 1996 (“CDA”) does not prevent a state law right of publicity claim against a Website operator. In Doe v. Friendfinder Network, Inc., No. 07-286, 2008 WL 803947 (D.N.H. March 27, 2008), a profile of the plaintiff, including a nude photo and biographical information, was posted by an unknown third party on AdultFriendFinder.com, an online swingers community, without the plaintiff’s knowledge or consent. The plaintiff asserted eight claims against the Website for, among other things, invasion of privacy (including violation of her right of publicity), defamation and false designation in violation of the Lanham Act. On the site’s motion to dismiss, the district court found that all of plaintiff’s claims were barred by the CDA, except her false designation and right of publicity claims. In so holding, the district court challenged and criticized a recent Ninth Circuit decision regarding the CDA’s immunity.

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Imagine a website that allows people to post comments or content anonymously, to protect their privacy. Pretty common. Now imagine that the website assists the poster through an interactive online questionnaire seeking specific categories of information. Under a new ruling of the Ninth Circuit, the anonymous poster who provides the information may escape detection and liability, while the website operator may be held responsible. This is a big change in the law of website operator immunity.

On May 15, 2007, the Ninth Circuit Court of Appeals issued an opinion written by Judge Alex Kozinski that may have significant consequences for interactive website operators.

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One update this week, and news regarding a significant new California Supreme Court decision on distributor immunity for defamatory Internet publications.

New AG Position on Prop 83

We previously reported on cases challenging recently passed Proposition 83, which increases penalties and parole terms for many sex crimes, requires felony sex offenders to wear GPS tracking devices for life, and subjects former offenders to expanded residency restrictions. Despite having taken the position on November 15 that the law does not apply retroactively, Attorney General Bill Lockyer appeared to reverse course on Monday, arguing that the measure bars all sex offenders from moving within 2,000 feet of a park or school. U.S. District Judge Jeffrey White of the Northern District of California set a hearing for February 23, 2007, extended the temporary restraining order barring law enforcement officials from evicting sex offenders now living within 2,000 of a school or park, and ordered the AG to submit briefing regarding their position after new AG Jerry Brown takes office. The AG asserted that its position had not changed; rather, it was responding to new circumstances.

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