An Online Dating Case dealing with the Communications Decency Act

The Communications Decency Act (CDA) regulates indecency and obscenity on the Internet in the United States. It also declares that operators of Internet services were not to be considered as publishers unless they actually created the material. This makes them not legally liable for the words of third parties who use their web sites. This includes everything from forum posts and comments too submitted articles.

The Friendfinder Network recently got into legal trouble when someone complained that someone else had created a fake profile on the dating site that “reasonably identified” her. Friendfinder did remove the profile from the dating site but the profile information and photo was still being used in advertising. The reason the Communications Decency Act was not applied in this case is:

... the right to control the commercial use of one’s identity is it considered a general intellectual property right. The judge reasoned that Friendfinder wasn’t entitled to the CDA’s usual brand of immunity due to the intellectual property provision that states the CDA does not preempt intellectual property laws.

In section 5 of Friendfinders Terms of Use Agreement it states:

By posting content to any public area of FriendFinder, you automatically grant, and you represent and warrant that you have the right to grant, to FriendFinder Network, Inc. and its members, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, perform, display, and distribute such information, rights of publicity, and content and to prepare derivative works of, or incorporate into other works and other media, such information and content, and to grant and authorize sublicenses of the foregoing.] This basically gives Friendfinder ownership over almost anything posted on their site. This may raise alarm bells when you read it but, it is common practice among dating services, social networks and other web services in which you post information.

While I am far from being a lawyer it appears to me that FriendFinder got into trouble because the information posted in the profile by the other person did not belong to them to post in the first place. Since the information posted in the profile was about some other actual person they had no right to post it, therefore they did not have the right to give up the general intellectual property right of the material to Friendfinder.

It is a sticky situation. Overall the person who actually posted the material is responsible, but Friendfinder did continue to use the information in advertising even after they were made aware of the problem with the information from that particular profile. I'm not sure how old this case actually is but, when you see profile information in FriendFinder Ads now (at least from the ads I see) they have a note at the bottom explaining "Photos and other data are for illustrative purpose only". I guess for the most part they have stopped the practice of using actual profiles in their advertising.

For the full story plus another example legal case, read the post at Public Knowledge and for more information on the CDA visit Wikipedia.