Published by LawTechie - March 22, 2012 - LawTechie

Internet LawOnline dating giants Match.com, eHarmony and Spark Networks have announced a program to screen for sex offenders to bar them from the dating services according to the AP.

Among other things, the companies agreed Monday to check subscribers against national sex registries, supply members with online safety tips, and provide a quick way to report abuses. Some of the companies already are using some of those practices.

The dating services also will provide the attorney general’s office with reports of suspected criminal activity…

Previously, the dating sites had successfully asserted Section 230 immunity (Section 230 of the Communications Decency Act of 1996) against users who claimed to have been defrauded or, worse, assaulted by other users via the matchmaking services.

Recall that Section 230 provides websites and ISPs with immunity for torts committed by site users on other users or third-parties so long as the defendant is not the “information content provider” of the harmful info at issue. Traditionally, websites have not been held to be “information content providers” so long as all they did was create a forum or some other medium of communication but had no actual had in creating the harmful content posted by its users.

In the wake of the internet’s growing sophistication, and website’s increased participation in the online discourse they host, various district courts had recently begun to limit the immunity provided under Section 230:

  • MCW, Inc. v. badbusinessbureau.com (RipOff Report/Ed Magedson/XCENTRIC Ventures LLC), 2004 WL 833595, No. Civ.A.3:02-CV-2727-G, (N.D. Tex. April 19, 2004): The court rejected the defendant’s motion to dismiss on the grounds of Section 230 immunity, ruling that the plaintiff’s allegations that the defendants wrote disparaging report titles and headings, and themselves wrote disparaging editorial messages about the plaintiff, rendered them information content providers. The Web site, www.badbusinessbureau.com, allows users to upload “reports” containing complaints about businesses they have dealt with.
  • Hy Cite Corp. v. badbusinessbureau.com (RipOff Report/Ed Magedson/XCENTRIC Ventures LLC), 418 F. Supp. 2d 1142 (D. Ariz. 2005): The court rejected immunity and found the defendant was an “information content provider” under Section 230 using much of the same reasoning as the MCWcase.

So now we have to ask whether this latest promise by the matchmaking websites to screen its users is not heading them down into “content provider” territory with regard to any potential disclosures of the information they find about their potential users (e.g., if Match.com maintains a database of rejected users based on criminal allegations and that database gets hacked and distributed, would or even should Section 230 apply?).

Many would argue that this increased participation by the website would bring its activities outside the scope of Section 230…

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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