ORDER GRANTING DEFENDANTS LYCOS, INC. AND METROS-PLASH.COM, INC.’S MOTION FOR SUMMARY JUDGMENT
I. Background
A. Factual Summary
This action is brought by Plaintiff Chris-tianne Carafano (aka Chase Masterson) (“Plaintiff’) against Defendants Metros-plash.com, Inc., Lycos, ’ Inc., Matchmaker.com, Inc. and Bradley R. Tyer for invasion of privacy, misappropriation of right of publicity, defamation and negligence. 1
The following facts are found to be undisputed 2 :
Plaintiff is an actress who goes by the stage name of “Chase Masterson.” Plaintiff has appeared in numerous movies and a long-running television program, Star Trek: Deep Space Nine, in which she had a prominent recurring role. Her character, Leeta the D’abo girl, was popular with fans. In addition to acting, Plaintiff makes a living from public appearances at Star Trek conventions and other fan events.
Matchmaker.com (“Matchmaker”) is a service, accessed from the World Wide Web, that permits members to search a database containing of profiles posted by other members. Matchmaker has 79 “communities,” 62 of which focus on particular cities, states or regions. Eleven communities focus on age groups, religious interests and lifestyles. There are six international communities. Matchmaker has more than 200,000 members. Many of Matchmaker’s members are “trial members,” who can use the service for a limited period at no charge. To continue after the trial period has expired, a member must agree to pay a monthly fee.
To join Matchmaker, a new member fills in an application, which requires an email address to be included. Upon completion, Matchmaker sends an automatic “welcome email” to the email address provided. If a person were to reply to the “welcome email,” it goes to the system operator (i.e. customer service representative) for that website. The new member must also complete a questionnaire of up to 62 multiple-choice questions and must answer at least one of a series of essay questions and may post up to 10 photographs. Matchmaker tailors its questionnaires for each Matchmaker community, so that they vary from one website community to another. The questions, answers to the questions, and the optional photographs become the data that makes up the member’s “profile.” The data provided by the member is stored on Matchmaker’s servers. When the profile is called up by the member, or
The multiple-choice questions for the Los Angles Metro Community include the following:
Your current living situation is? Happily married, Not so happily married, Married and we swing, Divorced living alone.
What style of dress do you prefer? I like to get dressed up, I like to dress casual, I dress for the occasion, What ever is clean, Preppy, Punk, Nude, Just call me Fred Flintstone.
Finally, why did you call? Hoping to start a relationship, Seeking an occasional lover, Hunting for a roommate, Scouting out for swinging couples, Looking for a pen pal only, Just looking/curious, A friend put me up to this, Looking for a one-night stand, I found the number on a bathroom wall, I don’t know and I won’t call back.
Other than the information volunteered by members when they respond to the questionnaire, and the credit card or check information obtained when a member becomes a paying member, Matchmaker does not collect personal information about members. Nor does Matchmaker verify the information provided by members when they join the service. Matchmaker does not pre-screen the text answers to its questionnaire of member profiles. Members are made aware of the possibility that the profiles are created by other members, and some information might be inaccurate or unreliable. To become a member and gain access to the Matchmaker database for their community, every person must agree to the Matchmaker Disclaimer. As part of its terms and conditions for membership, Matchmaker prohibits the inclusion of the following information (among other things) in a profile: home address, email address, telephone number, offensive sexually suggestive or connotative language. Only when a member becomes a paying member and elects to pay the fee by credit card or check does Matchmaker obtain any personal information, and that information is kept in confidence. Matchmaker does not review the answers to questionnaires before that information is included in the database and made available for searching by members. As soon as a new member completes the questionnaire, the resulting profile is made available on-line to other members of the community. At any time, existing members may call up their own profiles and make
Matchmaker rеviews all photographs before they are posted on the service. Each community has a system operator who handles member inquiries and complaints. When a member submits photographs for his or her profile, the photographs are routed to the system operator assigned to that member’s community. The system operator then reviews the photographs before they are included in the Matchmaker database. The system operator eliminates all photographs that violate Matchmaker’s standards. According to Defendants, while photographs can be efficiently and consistently evaluated under objective criteria (such as the ban on nudity in most Matchmaker communities), the monitoring of text would be necessarily subjective and would place Matchmaker in the role of editor, censor and arbiter of good taste. Defendants further contend that evaluation of text also is impractical because of the great number of profiles on the service, and the time that reading and analyzing the essay answers would require.
Matchmaker relies on its members to report abuses. Whenever a member complains about inappropriate content posted by others, the system оperator in charge of that community investigates and, if appropriate, edits or removes the offending profile.
On October 23,1999, an unknown person created a trial account under the name “
“You think you’re the one.
Proof it!!
[Plaintiffs home address]
[Plaintiffs telephone number].”
Matchmaker admits that the home address and email address in the Profile violated its terms and conditions.
Plaintiff alleges that other essay answers and the answer to a multiple-choice question falsely characterize her as licentious. She alleges that the Profile contains a litany of false statements about her, including the following; She contacted Matchmaker because she was “looking for a one-night stand”; she “might be persuaded to have a homosexual experience”; her main source for current events is Playboy/Playgirl; she is interested in meeting someone “hard and dominant in more ways than one. Must have a strong sexual appetite”; she likes “being controlled by a man in and out of bed.” Plaintiff also asserts that the Profile disclosed that she lived alone with her son.
As a result of the Profile, Plaintiff received obscene telephone messages, a fax letter, email and other correspondence. Plaintiff and her son were forced to leave their home and to stay in hotels and with friends; they eventually left the Los Ange-les area entirely for a period of time.
On or about November 4, 1999, Plaintiff learned about the Profile. The next day, Plaintiff reported the matter to police. Plaintiff did not contact Matchmaker.
On or after Saturday, November 6,1999, Siouxan Perry (“Perry”), who maintains Plaintiffs personal website, learned of the Profile from an email sent to Plaintiff by an individual using the name “Jeff.” Perry discussed the matter with Plaintiff and then contacted Matchmaker by telephone.
An exchange of emails between “Jeff’ and Perry establishes that the Profile was made inaccessible to Matchmaker members no later than Monday morning, No
Plaintiff believes that the
Plaintiff describes herself as a “successful actress who works in television, motion pictures, and live thеater.” She states that she is best known for her “break-out” role on Star Trek: Deep Space Nine, “the number one syndicated television show in the world.” Plaintiffs character was so popular that it was the subject of an action figure and a trading card. Plaintiff has been the topic of newspaper profiles and magazine articles. Plaintiff has also made the cover of several magazines including Femme Fatales as one of “Trek’s Sexy Fifty.” Plaintiff has taken on other prominent roles on television. She has appeared on a recurring role on General Hospital and as the featured guest star in the Emmy Award-winning episode of ER. For one year, Plaintiff co-hosted a news magazine show on the- Sci-Fi Channel, and in the last several years she has appeared on the television programs Sliders and Sci-Fi Vortex. She also hosted NBC Saturday Night at the Movies and was a guest on The Montel Williams Show. Plaintiff also has appeared in a number of films, and had lead roles in the movies Frozen, Marina, In a Moment of Passion, Sammyville, Lighting, Digital Man, and Married People, Single Sex. Her acting roles included a part in the hit Mel Brooks film, Robin Hood: Men in Tights. Plaintiff has made infomercials and television commercials, including a national TV ad where she played the CEO of Starkist Tuna. Plaintiff makes personal appearances at Star Trek conventions throughout the world, and joins fans on Star-Trek cruises. These appearances, which can draw as many as 5,000 people, involve speeches, autograph signings, dinners and mixing with fans. Plaintiff does not make official appearances at all of the conventions that she does attend; she sometimes attends such events without being paid. Plaintiff recently used a convention appearance to launch her singing career. Other public appearances by Plaintiff include hosting the “Sexiest Geek Alive” contest and charity walkathons. The “Sexiest Geek” event was the subject of national news reports and was a job that Plaintiff actively sought and hoped to turn into a television show. Plaintiff reports that her stage name was the answer to a question on the game show, Jeopardy. Managers and agents have been retained by Plaintiff in Hollywood and New York to advance her career as an entertainer. Plaintiff also promotes herself and her career on the Internet through a personal website, chasemaster-son.com, which details Plaintiffs achievements, touts her upcoming appearances and activities, and provides contact information for her manager. This personal website generates 200,000 to 300,000 “hits” by visitors each month. Plaintiff has “a worldwide following” and “her fan club has had a presence in eleven different countries.” Plaintiff boasts that “[a]t one point I had the largest fan club in Star Trek fandom of anyone, past or present actors on the show.” Plaintiffs fan club maintains a website and publishes a newsletter — both of which offer news and messages from Plaintiff. The fan club website gets about 3,000 “hits” from visitors each month. Even the filing of this lawsuit gained international media attention. In addition to speaking at Star Trek conventions, were she can reach thousands of people at a single engagement, Plaintiff has the ability to control the content in her fanclub’s newsletter and in her own website. Plaintiff maintains her own website, the content of which is entirely her choice.
Plaintiff has discussed her son at public events and in interviews, and her status as a single parent was certainly known by the hundreds of fans who have joined Plaintiff and her son on Star Trek cruises.
Recently, Plaintiffs personal website was simultaneously promoting Plaintiffs career and soliciting charitable giving for victims of the September, 2001 terrorist attack. Plaintiff is currently is advertising her new album of torch songs on her website.
In February 2000, an article appeared on the Internet describing an alleged suicide attempt by Plaintiff, which was originally reported in an Australian magazine. A member of Plaintiffs fan club in Australia posted information obtained from Plaintiff on the web regarding this report.
B. Procedural Summary
On October 27, 2000, Plaintiff filed her Complaint in the Superior Court of the State of California for the County of Los Angeles.
On December 21, 2000, Plaintiff filed a Request for Dismissal in the Superior Court, dismissing Defendant Bradley R. Tyer.
On January 2, 2001, Defendants Metros-plash.com, Inc. and Lycos, Inc.-filed a Notice of Removal of Action based, on diversity. The action was assigned to Judge King.
On January 9, 2001, Defendants filed a Motion to Dismiss Complaint Pursuant to FRCP 12(b)(6).
On January 9, 2001, the action was reassigned to Judge Moreno.
On February 8, 2001, the Court entered an Order Denying Defendants’ Motion to Dismiss.
On February 23, 2001, Defendants filed an Answer to Complaint.
On May 7, 2001, the Court held a Scheduling Conference.
On June 25, 2001, a Confidentiality Agreement and Order was filed.
On October '25, 2001, the case was reassigned to Judge Snyder.
On November 19, 2001, the case was reassigned to this Court.
On November 30, 2001, this Court issued a Nоtice to Counsel, wherein this Court vacated and set aside all previous dates.
On January 14, 2002, this Court held the Scheduling Conference and set the following dates: motion cutoff on February 14, 2002, pretrial conference on March 18, 2002 and trial on April 30, 2002.
On January 30, 2002, Defendants filed a Motion for Summary Judgment, which is currently before this Court.
II. Discussion
A. Standard
Under the Federal Rules of Civil Procedure, summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,- show that there is no genuine issue as to-any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial.
See Anderson v. Liberty Lobby, Inc., 4Iil
U.S. 242, 256,
A non-moving party who bears the burden of proof at trial to an element essential to its case must make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element of the case or be subject to summary judgment.
See Celotex Corp. v. Catrett,
If the moving party seeks summary judgment on a claim or defense on which it bears the burden of proof at trial, it must satisfy its burden by showing affirmative, admissible evidence.
Unauthenticated documents cannot be considered on a motion for summary judgment.
See Hal Roach Studios v. Richard Feiner and Co.,
On a motion for summary judgment, admissible declarations or affidavits must be based on personal knowledge, must set forth facts that would be admissible evidence at trial, and must show that the declarant or affiant is competent to testify as to the facts at issue.
See
Fed.R.Civ.P. 56(e). Declarations on “information and belief’ are inappropriate to demonstrate a genuine issue of fact.
See Taylor v. List,
B. Analysis
1. The Communications Decency Act of 1996 does not bar Plaintiffs causes of action
Defendants contend that all of Plaintiffs causes of action are barred by the Communications Decency Act of 1996 (“CDA”).
Section 230 of the CDA creates a federal immunity to any cause of action that would make computer service providers liable for information originating with a third-party user of the service. It provides as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
47 U.S.C. § 230(c)(1). The CDA defines an “interactive computer service” as:
[A]ny 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.
Id. at § 230(f)(2). Thus, claims seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.
Congress promulgated the CDA in recognition of “the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.”
Zeran v. America Online, Inc.,
(1) to promote the continued development of the internet and other interactive comрuter services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; ....
Id.
at § 230(b). While Congress made clear that the party who posts defamatory messages would not escape accountability, it “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.”
Zeran,
Section 230 of the CDA-also responded to a New York state court decision,
Strat-ton Oakmont, Inc. v. Prodigy Servs. Co.,
Thus, the question becomes whether Matchmaker is an “interactive computer service” provider so as to be immune from liability under Section 230 of the CDA.
a. Matchmaker is an “interactive computer service”
As set forth above, the CDA defines an “interactive computer service” as:
[A]ny 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.
Id. at § 230(f)(2). This Court agrees with Defendants that Matchmaker qualifies as an interactive computer service provider. Matchmaker is an information service “that provides or enables computer access by multiple users to a computer server.” Through the Internet, many thousands of members are able to access and use a searchable database maintained on Defendants’ computer servers.
Plaintiff argues that Matchmaker is not an interactive computer service. Specifically, she argues that Matchmaker neither provides nor enables computer access to the Internet.
3
However, the plain language of the statute does not contain this requirement. Rather, it
includes
as a specific example “a service or system that provides access to the Internet.” As such, internet service providers (ISPs) are only
In
Schneider v. Amazon.com, Inc.,
Thus, in sum, this Court concludes that Matchmaker is a website operator that qualifies as a provider of an interactive computer service under Section 230 of the CDA. The next question, then, is whether Matchmaker is considered an information content provider.
b. Matchmaker is an “information content provider”
Section 230 immunity applies only when the content is not provided by the service entity:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
47 U.S.C. § 230(c)(1). An information content provider is:
[A]ny 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.
Id. at § 230(f)(3).
Plaintiff argues that Matchmaker is such an “information content provider.” Specifically, she asserts that the questionnaire used to create the Profile was carefully fashioned specifically for the “Los Angeles Metro Community” to include what Defendants determined to be appropriate questions and suitable responses — many of which were sexually charged- — for that community.
This Court agrees that Matchmaker qualifies an information content provider. The users of the Matchmaker website do not simply post whatever information they desire. Rather, a profile for each user is created from the questions asked by Matchmaker and the answers .provided. These questions consist of multiple choice questions and essay questions. By conducting its service, Matchmaker does not just provide a site for people to post whatever information they choose. Rather, it provides 62 multiple-choice questions and a sеries of essay questions tailored for each Matchmaker community. Thus, Matchmaker is an “entity that is responsible, ... in part, for the creation or development of
Defendants argue that the Matchmaker service functions just like a bulletin board or any other type of on-line forum for speech. However, Defendants’ argument ignores an important difference between Matchmaker and a bulletin board. Specifically, as stated above, Matchmaker contributes to the content of the profiles by asking specific questions with multiple choice answers and specific essay questions. It is responsible, in part, “for the creation or development of information” contained in the profiles. Indeed, it appears that a member cannot post any other additional information even if he/she desires. By contrast, a bulletin board and the other types of on-line forums designated by Defendants merely provide the forums for the speech and do not contribute to the creation or development of information provided by the users of these services. This Court’s determination would be different if Matchmaker simply acts as a conduit of the information, but it does not. Matchmaker takes an active role in developing the information that gets posted.
Defendants further argue that there is simply no authority for the proposition that providing a public forum for- speech, or asking non-defamatory questions, creates liability for the speech of others. Defendants, however, phrase the issue inaccurately in an attempt to ignore the plain language of the CDA. The issue is whether the CDA provides immunity for Matchmaker, as a provider of an interactive computer service, when Matchmaker is also an information content provider. Defendants are correct that such a determination requires this Court to decide when content provided by third parties is somehow transformed into content created by an interactive computer service. Indeed, the very nature of this inquiry requires this Court to make this determination because of the specific wording of the statute. Other courts recognize that this distinction needs to be made as well. In
Schneider v. Amazon.com, Inc., supra,
the court determined that Amazon.com was a provider or user of interactive computer services. It then proceeded to determine whether Amazon.com was an information content provider.
See id.
at 465,
Similarly, in
Blumenthal v. Drudge,
AOL acknowledges both that Section 230(c)(1) would not immunize AOL with réspect to any information AOL developed or created entirely by itself and that there are situations in which there may be two or more information content prоviders responsible for material disseminated on the Internet — joint authors, a lyricist and a composer, for example.... While Section 230 does not preclude joint liability for the joint development of content, AOL maintains that there simply is no evidence here that AOL had any role in creating or developing any of the information in the Drudge Report. The Court agrees. It is undisputed that the Blumenthal story was written by Drudge without any substantive or editorial involvement by AOL.... AOL was nothing more than a provider of an interactive computer service on which the Drudge Report was carried ....
Id. Again, this Court found that joint liability would be possible if AOL “had any role in creating or developing any of the information” in the posted material.
Thus, in sum, the language of the statute itself requires this Court to determine whether Matchmaker, as a provider of an interactive computer service, is an information content provider, i.e., is partly responsible for the creation or development of the information being provided. ' This Court concludes that Matchmaker is such an information content provider. Consequently, the immunity of Section 230 does not extend to it as a matter of law, and Defendants are not entitled to summary judgment on this basis.
2. Defendants are entitled to summary judgment with respect to Plaintiffs cause of action for invasion of privacy
In her first cause of action, Plaintiff alleges that Defendants invaded her right to privacy by posting the Profile on Matchmaker. Specifically, she alleges that the publicity created by Defendants constituted a public disclosure of private facts as to Plaintiffs home address. 4 Defendants argue that summary judgment is warranted as to this cause of action because Plaintiff cannot meet the requirements for a private facts claim.
The private facts claim requires “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public interest.”
Shulman v. Group W Productions, Inc.,
Defendants argue that (1) the disclosure of Plaintiffs home address was not “offensive” to the reasonable person; (2) Plaintiffs celebrity status made the disclosure newsworthy; and (3) Defendants did not act with reckless disregard when publishing Plaintiffs address. Because this Court agrees with the second and third arguments, .it does not address Defendants’ first argument. 5
“It is well sеttled that even where the three elements for a cause of action for invasion of privacy are met, publication of the information may still be exempt from
In considering the above factors, this Court concludes that the publication of Plaintiffs address was newsworthy. First, the social value of Plaintiffs address can be inferred from the myriad tours and maps offered of “Star’s Homes” throughout Los Angeles County. Second, the intrusion here is minimal given the fact that Plaintiffs address is not a “private matter” but rather is a matter of public record. (See Alger Supp. Decl., ¶ 15, Exh. 6.) As the California Supreme Court stated:
If the information reported has previously become part of the ‘public domain’ or the intrusion into an individual’s private life is only slight, publication will be privileged even though the social utility of the publication may be minimal. [Citations.]
Kapellas v. Kofinan,
Furthermore, this Court concludes that there is no evidence that Defendants acted with reckless disregard when publishing Plaintiffs home address. The California Supreme Court held that a plaintiff cannot prevail on a claim for public disclosure of private facts without establishing that the defendant published the information “with reckless disregard for the fact that reasonable men would find the invasion highly offensive.”
Briscoe v. Reader’s Digest Association, Inc.,
In light of the above, because this Court concludes that Defendants have established that the disclosure of Plaintiffs home address was newsworthy and that Plaintiff cannot show a triable issue with respect to whether the disclosure of Plaintiffs home address was made with reckless
3. Defendants arе entitled to summary judgment with respect to Plaintiffs cause of action for defamation
In her third cause of action, Plaintiff alleges that Defendants published the Profile which contained false and defamatory statements about Plaintiff concerning her alleged sexual behavior and preferences. Defendants seek summary judgment with respect to this cause of action and contend that Plaintiff cannot establish that Defendants acted with constitutionally required actual malice.
a. Plaintiff is a public figure
Public figures are entitled to less protection against defamation and invasion of privacy than are private figures with respect to the publication of false information about them.
See Gertz v. Robert Welch, Inc.,
The public figure distinction is broken down into two categories — general purpose public figures and limited public figures.
See Gertz,
Because this Court concludes that Plaintiff is a general purpose public figure, it does not examine whether Plaintiff is a limited public figure. Courts often have found that there is a public interest which attaches to people who by their professional calling, such as actors, create a legitimate and widespread attention to their activities. Thus, the actions of such public figures may legitimately be mentioned and discussed in print or on radio or television. As has been stated: “A person may, by his own activities or by the force of circumstances, become a public personage and thereby relinquish a part of his right of privacy to the extent that the public has a legitimate interest in his doings, affairs, or character.”
Werner v. Times-Mirror Co.
Plaintiff describes herself as a “successful actress who works in television, motion pictures, and live theater.” She states
This Court notes that it is further persuadеd by case law which support the notion that actors and entertainers are public figures.
See, e.g., Carlisle v. Fawcett Publications, Inc.
b. Plaintiff has failed to establish a genuine issue of fact that Defendants acted with actual malice
Defendants argue that there is no evidence, let alone “clear and convincing” evidence, that Defendants acted with actual malice in publishing the Profile.
The Supreme Court established the constitutional rule that a public figure cannot recover damages for defamation without clear and convincing proof that a false “statement was made with ‘actual malice’ — ’that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
New York Times Co. v. Sullivan,
Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
See id.
at 160,
Plaintiff argues that Defendants should have entertained serious doubt as to the truth of the Profile. She relies on the reply email which she claims was sent to Matchmaker in response to Matchmaker’s confirmation email. 6 She states that this automatic reply email amounted to an invitation to have sex, accompanied by Plaintiffs home address and telephone number. She further argues that Defendants had a high degree of awareness of the Profile’s probable falsity when Plaintiffs assistant demanded that the Profile be removed.
This Court concludes as a matter of law that Plaintiff has failed to show evidence, much less clear and convincing evidence, from which a jury could find actual malice. First, as Defendants argue, Plaintiff provides no evidence that Matchmaker ever received the reply email in response to its welcome confirmation email. Second, even
Reckless disregard for the truth ‘is not meаsured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ Lack of due care is not the measure of liability, nor is gross or even extreme negligence.
McCoy v. Hearst Corp.,
In sum, Plaintiff, as a public figure, must establish by clear and convincing evidence that a genuine issue of fact exists as to whether actual. malice can be proven at trial. Plaintiff has failed to do so. Consequently, Defendants are entitled to summary judgment with respect to the defamation cause of action.
c. Defendants did not act as distributors
Defendants further argue that because Matchmaker acted as a distributor and had no reason to know that the profile was false, they cannot be held liable for defamation. While this Court notes that it does not need to reach this further argument based on its determination, above, this Court briefly addresses Defendants’ argument.
A distributor of defamatory matter is blameless if the distributor has had no notice of its possible falsity.
See
Restatement' (Second) Torts § 581 (“one who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character”). “This rule protects libraries and vendors of books, magazines and newspapers.”
Osmond v. EWAP, Inc.,
This Court agrees with Plaintiff and concludes that Defendants are not merely distributors of the Profile. Defendants attempt to hold Matchmaker out as an “electronic library” and assert that just as a traditional library cannot be held lia
4. Defendants are entitled to summary judgment with respect to Plaintiffs cause of action for misappropriation of right of publicity
In her second cause of action, Plaintiff alleges that the use of her photographs in the Profile -constitute an appropriation of her likeness. Defendants seek summary judgment with respect to this cause of action arguing that Plaintiff cannot show that Defendants acted with the requisite constitutional actual malice. This Court agrees with Defendants that because Plaintiff cannot establish a triable issue with respect to actual malice, as explained above, Plaintiff cannot sustain her claim for misappropriation of the right to publicity. See Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1187 (9th Cir.2001).
Plaintiff responds that the actual malice standard does not apply to Plaintiffs claim because the Profile constituted commercial speech. “When speech is properly classified as commercial, a public figure plaintiff does not have to show that the speaker acted with actual malice.”
Id.
at 1185. The question, then, is whether the Profile constitutes commercial speech. The “core notion of commercial speech” is that it “does no more than propose a commercial transaction.”
Id.
at 1184 (citing
Bolger v. Youngs Drug Prods., Corp.,
In support of her argument that the Profile constitutes commercial speech, Plaintiff asserts that Matchmaker’s business .is dependent on enticing free trial members to become paying members through access to profiles for a certain period, and that Matchmaker must sell memberships to customers to stay in business. This Court finds Plaintiffs argument to be without merit. The fact that Matchmaker makes a profit from selling memberships does not transform the speech at issue into commercial speech.
See id.
at 1186 (defendant’s goal of gaining a profit from magazine sales or “rev[ing] up” the magazine’s profile did not make fashion article “commercial”). Plaintiff attempts to compare Matchmaker’s use of the Profile with the unauthorized use of
Thus, this Court concludes that the Profile does not constitute commercial speech, and therefore, the actual malice standard does apply, precluding Plaintiffs claim for misappropriation of the right of publicity and entitling Defendants to summary judgment with respect to this cause of action.
5. Defendants are entitled to summary judgment with respect to Plaintiffs cause of action for negligence
In support of her fourth cause of action for negligence, Plaintiff argues that Defendants were negligent by: (1) failing to enforce their own policies prohibiting publication of street addresses, email addresses and offensive, sexually suggestive language; (2) failing to heed any of the warning signs that the Profile was a hoax, most notably, the automatic response they received; (3) failing to remove the Profile after being told it was false; and (4) failing to train its system operators, particularly with respect to handling false profiles.
In seeking summary judgment with respect to this cause of action, Defendants rely on' the same arguments they made with respect to' the defamation claim — that Plaintiff is a public figure and cannot establish by clear and convincing evidence that Defendants acted with constitutional actual malice. Plaintiff responds that the facts giving rise tо her negligence claim consist of “far more than defamatory words.”
This Court agrees with Defendants that Plaintiffs negligence claim is dependent on her defamation claim. , While Plaintiff attempts to allege four separate omissions or acts by Defendants as. negligence, each rests on the alleged falsity of the Profile. Absent “publication” of the Profile by Defendants, Plaintiff has no negligence claim. As the Fourth Circuit stated in Zeran:
Although [Plaintiff] attempts to artfully plead his claims as ones of negligence, they are indistinguishable from a garden variety defamation action. Because the publication of a statement is a necessary element in a defamation action, only one who publishes can be subject to this form of tort liability. [Citations.] Publication does not only describe the choice by an author to include certain information. In addition, both the negligent communication of a defamatory statement and the failure to remove such a statement when first communicated by another party — each alleged by [Plaintiff] here under a negligence label — constitute publication. [Citations.]
Zeran,
As mentioned above, Plaintiff argues that the facts giving rise to the negligence claim consist of far more than defamatory words. In support, she cites to the sole case of
Flynn v. Higham,
In
Blatty v. New York Times Co.,
Although the limitations that define the First Amendment’s zone of protection for the press were established in defamation actions, they are not peculiar to such actions but apply to all claims whose gravamen is the alleged injurious falsehood of a statement: ‘[t]hat constitutional protection does not depend on the label given the stated cause of аction’ [citation], and no cause of action ‘can claim ... talismanic immunity from . constitutional limitations’ [citations].
Id.
at 1042-43,
In sum, Plaintiffs claim — that Defendants failed (1) to enforce their own poli
C. Conclusion
Defendants have demonstrated the absence of a genuine issue of fact for trial with respect to each of Plaintiffs causes of action, and Plaintiff has not set forth specific facts showing that there remains a genuine issue for trial. Accordingly, this Court grants Defendants Lycos, Ihc. and Metrosplash.com, Inc.’s Motion for Summary Judgment.
IT IS SO ORDERED.
Notes
. In making this determination, this Court examined Defendants' Proposed Statement of Uncontroverted Material Facts, Plaintiff’s Statement of Genuine Issues and Defendants’ Response to Plaintiff’s Statement of Genuine Issues, as well as all supporting evidence. Furthermore, this Court has reviewed both parties’ objections to evidence, and while some objections are moot because this Court did not rely on that evidence, to the extent evidence is included in this Order to which objections have been made, said objections are deemed overruled.
. This Court notes that in his Order Denying Defendants’ Motion to Dismiss,. Judge Moreno found that Matchmaker is not an internet service provider, and tirat therefore, the Section 230 defense does not immunize Defendants from liability. However, this finding, which this Court disagrees with for the reasons set forth herein, was made upon a motion to dismiss wherein the Court cannot consider evidence outside of the pleadings and must accept all material allegations in the complaint as true.
. Plaintiff also originally alleged that Defendants tortiously disclosed the private facts of her telephone number and that she lived alone with her son; however, it appears from the papers submitted that Plaintiff has abandoned her claim with respect to these facts.
. This Court also acknowledges the fact that Judge Moreno, in his Order, Denying Defendants' Motion to Dismiss, found that "disclosing ... Plaintiff’s address constitute^] tor-tious disclosure of private facts.” (See Order, p. 8.) Thus, to avoid any inconsistent findings, even though Judge Moreno's determination was not made on a complete record but on a motion to dismiss, this Court proceeds to Defendants’ last two arguments which were not addressed by Judge Moreno’s order.
. As set forth in the factual summary, upon complete of a membership application, Matchmaker sends an automatic "welcome email" to the email address provided by the new member. With respect to the Profile at issue, the email address in the Profile prompted the following automatic response: "You think you’re the one. Proof it!! [Plaintiff's home address] [Plaintiff's telephone number].”