OBADO v. MAGEDSON et al

Filing 229

OPINION filed. Signed by Judge Joel A. Pisano on 7/31/2014. (kas )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
DENNIS OBADO,
:
:
Plaintiff,
:
Civil No. 13-2382 (JAP)
:
v.
:
OPINION
:
ED MAGEDSON, et al.,
:
:
Defendants.
:
:
PISANO, District Judge.
Pro se Plaintiff, Dennis Obado, has filed a ninety-three page, seventeen count Second
Amended Complaint against nearly twenty defendants. Plaintiff has successfully served eight
defendants, all of which have now moved to dismiss the Second Amended Complaint. Plaintiff
opposes all these motions. The Court decides these motions without oral argument pursuant to
Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court grants these
motions.
I.

Background
On April 9, 2013, Plaintiff filed a fifty-four page Complaint against fifteen defendants.

By May 22, 2013, Plaintiff filed his ninety-three page Second Amended Complaint (“SAC”),
which included approximately seventeen counts against nearly twenty defendants. Plaintiff
ultimately served eight of the named Defendants: (1) Intelius Inc., (2) Xcentric Ventures, LLC,
(3) Switchboard LLC & Whitepages, Inc., (4) Enom.com, (5) Softlayer Technologies, Inc., (6)
Neustar, Inc., (7) Yahoo! Inc., and (8) Google Inc. (together, the “Defendants”).

This entire lawsuit stems from certain alleged blog postings made by two individuals.
The first posting was made on October 9, 2012 by an anonymous blogger with the alias “Mama
Duka,” who made certain defamatory comments concerning Plaintiff on the website
www.ripoffreport.com. The second posting was made by an individual named Diop Kamau
(a.k.a. “Don Jackson”) who made a number of postings that are allegedly defamatory and of a
private nature regarding Plaintiff on various websites, including www.policeabuse.com,
maryhoerster.blogspot.com, www.ripoffreport.com, www.scribd.com, www.yousendit.com.
Plaintiff has brought suit against the Defendants because they displayed, distributed or linked to
these third-party commentary and images. See SAC ¶¶ 3, 14, 62, 82–83, 94. Plaintiff also
alleges that Defendants engaged in “editing functions” and “publishing functions” by including
links to the posts at issue in search results, sorting these results in a “disparate, and
discriminatory manner,” and by not removing those results upon notice and demand. See id. at
¶¶ 22, 31, 34, 47–48, 52, 62, 82–83, 92, 99, 110–16, 144, 147. Plaintiff also asserts that the
Defendants displayed allegedly “defamatory search terms” such as “Dennis Obado and criminal”
and “Dennis Obado’s workers compensation case” through search results or “post[ed]
defamatory images” with Plaintiff’s name. SAC ¶¶ 23, 29, 47, 61, 68, 83. Plaintiff also alleges
that Defendants have refused to remove and/or investigate the materials in violation of their
“terms of use policy, confidentiality agreement, privacy policies, and opt out policies.” See SAC
¶¶ 45, 53. 55, 57. Plaintiff seeks $500 million in damages, plus injunctive relief. There is no
allegation that any of the Defendants actually authored any of the posts, third-party websites, or
images at issue in this case.
As mentioned, the SAC consists of seventeen counts. These seventeen counts include
claims for the following: defamation, slander per se and per quod, and libel per se and per quod;

2

intentional infliction of emotional distress; negligent infliction of emotional distress; a violation
of the New Jersey Consumer Fraud Act (“CFA”); punitive damages; improper publication of
private facts; invasion of privacy; intrusion upon seclusion; false light; a violation of the Age
Discrimination in Employment Act (“ADEA”); unfair and deceptive practices under state law;
common law fraud; a second defamation claim in which Plaintiff alleges that Defendants
conspired with each other; falsity; “damage to reputation, and damage to emotional and mental
health”; and “fault-negligence and actual malice.” All the claims are brought against all
Defendants, except for four counts: improper publication of private facts (Count Six), invasion
of privacy (Count Seven), intrusion upon seclusion (Count Eight), and reverse discrimination
under the ADEA (Count Nine). Those four counts are brought against defendants Intelius, Diop
Kamau (who has not been served), and/or the individual bloggers.
Each Defendant has filed a motion to dismiss. Due to Plaintiff’s pro se status, the
briefing schedule has been extended, allowing Plaintiff extra time to respond to each motion.
Accordingly, the first motion to dismiss was filed in December 2013, and the final reply brief
was filed on May 23, 2014. To put it mildly, Plaintiff has been an active litigant, filing
numerous entries on the docket in support of his SAC. On March 3, 2014, the Court entered an
Order, advising Plaintiff that any amendment submitted after the opposition due date would be
disregarded. See ECF No. 158. Plaintiff continued to file such “amended” oppositions,
however. 1 The Court has reviewed these oppositions in consideration of Plaintiff’s pro se status,
and has considered them to the degree necessary. While some Defendants have raised
additional, nuanced arguments regarding why the SAC should be dismissed, each motion is

1

Plaintiff has also filed certain briefs that he has titled “cross-motions for summary judgment.” To the extent that
these briefs could be considered “cross-motions,” the Court need not address their applicability because Defendants
are immune from Plaintiff’s claims.

3

premised on Defendants’ claim that they are immune from suit under Section 230 of the
Communications Decency Act (“CDA”), 47 U.S.C. § 230.
II.

Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint

“for failure to state a claim upon which relief can be granted.” When reviewing a motion to
dismiss, courts must first separate the factual and legal elements of the claims, and accept all of
the well-pleaded facts as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.
2009). All reasonable inferences must be made in the Plaintiff’s favor. See In re Ins. Brokerage
Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010).
In order to survive a motion to dismiss, the plaintiff must provide “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). This standard requires the plaintiff to show “more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A “plaintiff's
obligation to provide the grounds of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal quotations and citations omitted). When assessing the
sufficiency of a civil complaint, a court must distinguish factual contentions and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal,
556 U.S. at 678. Any legal conclusions are “not entitled to the assumption of truth” by a
reviewing court. Id. at 679. Rather, “[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. See also Fowler, 578 F.3d at 210
(explaining that “a complaint must do more than allege a plaintiff’s entitlement to relief”).

4

Generally, the Court’s task in assessing a motion to dismiss requires it to disregard any
material beyond the pleadings. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997). A district court may, however, consider the factual allegations within other
documents, including those described or identified in the Complaint and matters of public record,
if the plaintiff’s claims are based upon those documents. See id. at 1426; Mayer v. Belichick,
605 F.3d 223, 230 (3d Cir. 2010) (explaining that the court may properly consider the
“complaint, exhibits attached to the complaint, matters of public record, as well as indisputably
authentic documents if the complainant’s claims are based upon these documents”).
III.

Discussion
A.

Background of the CDA

The question facing this Court is whether Defendants have been granted statutory
immunity against Plaintiff’s claims. Section 230 of the CDA states, in relevant part: “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).
Section 230 also provides that “[n]o cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3).
Therefore, the “plain language” of § 230 “creates a federal immunity to any cause of
action that would make service providers liable for information originating with a third-party
user of the service.” Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert
denied, 538 524 U.S. 937 (1998); see also Green v. Am. Online, 318 F.3d 465, 470–71 (3d Cir.
2003); Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000).
Section 230 “overrides the traditional treatment of publishers, distributors, and speakers under
statutory and common law,” due to Congress’s decision “‘not to treat providers of interactive

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computer services like other information providers such as newspapers, magazines or television
and radio stations, all of which may be held liable for publishing or distributing obscene or
defamatory material written or prepared by others.’” Batzel v. Smith, 333 F.3d 1018, 1026 (9th
Cir. 2003) (quoting Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C.1998)). In other words,
Ҥ 230 precludes courts from entertaining claims that would place a computer service provider in
a publisher's role,” and “lawsuits 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.” Zeran, 129 F.3d at 330; see also Green, 318 F.3d at 471.
Under the statute, there are certain causes of action that are specifically not barred by § 230;
namely, cases of action based on (1) federal criminal statutes, (2) intellectual property law, (3)
state law “that is consistent with this section,” and (4) the Electronic Communications Privacy
Act of 1986. 47 U.S.C § 230 (e)(1)-(4).
“Section 230 was enacted, in part, to maintain the robust nature of Internet
communication and, accordingly, to keep government interference in the medium to a
minimum.” Zeran, 129 F.3d at 330. Congress stressed in specific statutory findings that “[t]he
Internet and other interactive computer services offer a forum for a true diversity of political
discourse, unique opportunities for cultural development, and myriad avenues for intellectual
activity.” 42 U.S.C. § 230(a)(3). Congress, therefore, recognized the threat that tort-liability
would pose to freedom of speech in the Internet, and wanted to immunize service providers for
the communications of otherwise in order to avoid government regulation of speech: “It is the
policy of the United States . . . 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. § 230(b)(2). As the Fourth Circuit noted as early as 1997:

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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 331.
B.

Defendants Qualify for Immunity under the CDA

In order to qualify for immunity under § 230, three elements must be met: (1) the
defendant must be a provider or user of an “interactive computer service,” (2) “the asserted
claims must treat the defendant as a publisher or speaker of information,” and (3) “the challenged
communication must be information provided by another information content provider.” Dimeo
v. Max, 433 F. Supp. 2d 523, 529 (E.D. Pa. 2006), aff’d, 248 F. App'x 280 (3d Cir. 2007). Once
CDA immunity applies, providers are immune from “any” claim arising out of content
originating from a third party, regardless of the theory underlying the cause of action. 47 U.S.C.
§ 230(e)(3); see also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101–02 (9th Cir. 2009) (“[W]hat
matters is not the name of the cause of action—defamation versus negligence versus intentional
infliction of emotional distress—what matters is whether the cause of action inherently requires
the court to treat the defendant as the ‘publisher or speaker’ of content provided by another.”).
Here, there is no dispute that Defendants are all providers of an “interactive computer
service,” as defined in 47 U.S.C. § 230(f). 2 Likewise, there is no dispute that the posts constitute
“information provided by another information content provider.” 47 U.S.C. § 230 (c)(1). An
information content provider “means any person or entity that is responsible, in whole or in part,
2

Under § 230(f)(2), an “‘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.”

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for the creation or development of information provided through the Internet or any other
interactive computer service.” Id. § 230(f)(3). Plaintiff’s SAC makes clear that the allegedly
defamatory posts were created by and authored entirely by an anonymous blogger named “Mama
Duka” and an individual named Diop Kamau.
Likewise, in regards to the second element, it is clear that each of Plaintiff’s seventeen
claims “treat” Defendants as the “publisher” and not the creator of the alleged defamatory
content. Plaintiff alleges that Defendants “published” and “distributed” the allegedly
defamatory blogs posted on www.ripoffreport.com and other sites through “internet search
results.” It is not alleged (nor could it be) that any Defendants created this content. Plaintiff is
simply seeking to hold the various Defendants liable for “publishing” such content in its search
engine results or otherwise providing access to such results. In each instance raised by Plaintiff’s
tort or federal claims, Defendants either archived or simply provided access to content that was
created by third parties. The allegedly defamatory statements were created by “Mama Duka”
and Diop Kamau. Plaintiff has not alleged that Defendants in any way participated in the
creation of the content of the blogs, or altered the content of the blogs in any way. Clearly, §
230 provides immunity for service providers like Defendants on exactly the claims that Plaintiff
alleges here. See Green, 318 F.3d at 471 (holding § 230 barred tort action against AOL for its
allegedly negligent failure to remove defamatory material from a chat room on its network); Doe
v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (finding plaintiff’s claims, allegedly based
on MySpace’s failure to implement appropriate safety measures, are “merely another way of
claiming MySpace was liable for publishing the communications” of third-parties and are
consequently barred by the CDA); Parker v. Google, Inc., 422 F. Supp. 2d 492, 500–01 (E.D. Pa.
2006) (explaining Google is immune under the CDA for tort claims premised on allowing access

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to allegedly defamatory messages posted by third-party users on Usenet’s message boards);
Dimeo, 433 F. Supp. 2d at 530–31 (holding CDA immunity applied for defamation claim against
an owner of a website that hosts online message board where a third-party user posted allegedly
defamatory statements); Milgrim v. Orbitz Worldwide, Inc., 419 N.J. Super. 305, 316 (2010)
(finding defendants immune from liability under the CFA for conduct of third-party sellers using
defendants’ websites).
In an attempt to avoid CDA immunity, Plaintiff argues that Defendants have engaged in
certain “editing functions” by posting “Mama Duke’s false defamatory blog, in a way that the
public would construe this blog as fact, by not including in the same result, Plaintiff’s rebuttal in
a conspicuous manner, in the same first page of [the search results]” and by “controlling which
defamatory blog wording would be posted on internet search engines.” See SAC ¶¶ 22, 31, 48,
83, 92. These claims fail to create liability for the Defendants. The Third Circuit has held the
CDA immunizes traditional publisher conduct, such as “deciding whether to publish, withdraw,
or alter content.” Green, 318 F.3d at 471. In the context of an internet service provider, “such
decisions would include deciding whether to provide access to third-party content or whether to
delete the content from its archival or cache.” Mmubango v. Google, Inc., CIV. A. 12-1300,
2013 WL 664231, at *3 (E.D. Pa. Feb. 22, 2013) (citing Green, 318 F.3d at 471). Thus, any
claims premised on any posting or alleged manipulation of search results to favor the alleged
defamatory content about Plaintiff are not actionable under § 230. Further, even assuming that
Defendants did selectively choose how to display certain search results, these types of editorial
functions are still protected by § 230. See Asia Econ. Inst. v. Xcentric Ventures LLC, CV 1001360, 2011 WL 2469822, at *6 (C.D. Cal. May 4, 2011) (finding that alleged manipulation of
HMTL code to make certain third-party reviews “highly visible and influential in Google search

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results” did not render the defendants “information content providers” because “[i]ncreasing the
visibility of a statement is not tantamount to altering its message”). In reality, the results of a
search engine query are determined by an underlying algorithm. None of the relevant
Defendants used any sort of unlawful criteria to limit the scope of searches conducted on them;
“[t]herefore, such search engines play no part in the ‘development’ of the unlawful searches” and
are acting purely as an interactive computer service. Fair Housing Council of San Fernando
Valley v. Roommtes.com, LLC, 521 F.3d 1157, 1167 (9th Cir. 2008). Accordingly, Defendants
are entitled to immunity under the CDA.
Plaintiff also asserts that Defendants have failed to remove the alleged defamatory blogs
in violation of each Defendant’s terms of use and privacy policies. See SAC ¶¶ 29, 55.
However, § 230 immunity extends to the service provider’s decisions about how to treat
potentially objectionable material. As the Third Circuit has explained, § 230 “specifically
proscribes liability” in situations where an interactive service provider makes a decisions
“relating to the monitoring, screening, and deletion of content from its network—actions
quintessentially related to a publisher’s role.” Green, at 470–71. Defendants cannot be held
liable for failing to withdraw any of the alleged defamatory statements, just as they cannot be
found liable for “deciding” to publish any such statements through its search results. See
Murawski v. Pataki, 514 F. Supp. 2d 577, 591 (S.D.N.Y. 2007) (“Deciding whether or not to
remove content or deciding when to remove content falls squarely within Ask.com’s exercise of
a publisher’s traditional rule and is therefore subject to the CDA’s broad immunity.”).
Plaintiff also argues that Defendants displayed through search results certain “defamatory
search terms” like “Dennis Obado and criminal” or posted allegedly defamatory images with
Plaintiff’s name. See SAC ¶¶ 23, 29, 47, 61, 68, 83. As Plaintiff himself has alleged, these

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images at issue originate from third-party websites on the Internet which are captured by an
algorithm used by the search engine, which uses neutral and objective criteria. Significantly, this
means that the images and links displaced in the search results simply point to content generated
by third parties. See, e.g., Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873, 885 (E.D. Wis. 2009)
aff'd, 623 F.3d 436 (7th Cir. 2010) (explaining that search results are not created by the search
engine itself; rather the search engine “only displays the content in response to a C-user’s search
results” and therefore does not create the content); Gov't Employees Ins. Co. v. Google, Inc., 330
F. Supp. 2d 700, 701–02 (E.D. Va. 2004) (explaining how search engines work). Thus,
Plaintiff’s allegations that certain search terms or images appear in response to a user-generated
search for “Dennis Obado” into a search engine fails to establish any sort of liability for
Defendants. These results are simply derived from third-party websites, based on information
provided by an “information content provider.” The linking, displaying, or posting of this
material by Defendants falls within CDA immunity. See Stayart, 651 F. Supp. 2d at 885
(explaining that Yahoo! search results for plaintiff’s name were not created by Yahoo! itself but
by another information content provider); Murawski, 514 F. Supp. 2d at 591 (holding that
Ask.com could not be held liable for information that appears as a result of a search query for the
plaintiff’s name); Parker, 422 F. Supp. 2d at 501 (finding that Google is not an “information
content provider” because “the information on websites that appears as a result of a search
query” are created by “other internet users”).
Likewise, suggested search terms auto-generated by a search engine do not remove that
search engine from the CDA’s broad protection because such auto-generated terms “indicates
only that other websites and users have connected plaintiff’s name” with certain terms. Stayart
v. Google Inc., 783 F. Supp. 2d 1055, 1056–57 (E.D. Wis. 2011) aff'd, 710 F.3d 719 (7th Cir.

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2013) (finding that plaintiff’s allegation that Google suggested the phrase “bev stayart levitra”—
the plaintiff’s name and the name of a sexual dysfunction drug—when plaintiff Googled her
name did not allow plaintiff to “get around [the CDA] obstacle”). This is true even if, as
Plaintiff argues, Defendants acted in bad faith. See Levitt v. Yelp!, Inc., No. C-10-1321, 2011
WL 5079526, at *7–8 (C.D. Cal. Oct. 26, 2011) (holding that CDA immunity applied “regardless
of whether the publisher acts in good faith”).
C.

Plaintiff’s Claims Do Not Qualify for any Exceptions to the CDA

Finally, in a last-ditch attempt to avoid his claims being barred by Section 230, Plaintiff
has offered up a scattering of reasons in his Oppositions for why his claims should not be barred
under certain exceptions to the CDA. Plaintiff first argues that the First Amendment precludes
immunity under the CDA. Next, Plaintiff also asserts “new” claims for a right of publicity
violation, criminal conspiracy, and promissory estoppel, apparently in an effort to avail himself
of certain limited exceptions to the CDA’s otherwise broad immunity. 3 Even if the Court were
to consider Plaintiff’s new allegations, which do not exist within the SAC,4 they still fail to
circumvent § 230 immunity.
First, Plaintiff argues that a “1st Amendment exception” for “fighting words” and “hate
speech” bars immunity under the CDA. In other words, Plaintiff appears to be arguing that,

3

Plaintiff has also cited in his Oppositions that Plaintiffs have violated the Visual Artists Rights Act (“VARA”), 17
U.S.C. § 160A, but has failed to allege any facts to show that Yahoo violated a “work of visual art.” See 17 U.S.C.
§ 101. The only “work” discussed, however, is Plaintiff’s purported manuscript, which does not qualify as a “work
of visual art” under VARA. Furthermore, Plaintiff only alleges that Yahoo “distributed criminal blogs,” not any part
of Plaintiff’s manuscript. Plaintiff also argues that Defendants have violated the Sarbanes-Oxley Anti-Shredding
Statute, 18 U.S.C. § 1519, but has failed to show how any Defendants have obstructed a federal investigation.
Finally, Plaintiff argues in passing that Defendants have violated numerous other federal criminal statutes aimed at
protecting civil rights. Even assuming Plaintiff could bring a claim under such criminal statutes, Plaintiff has failed
to allege how Defendants have violated his civil rights, 18 U.S.C § 241, or interfered with plaintiff’s exercise of a
federal protected activity or committed a hate crime against him, 18 U.S.C. § 245. Even the quickest review of the
SAC shows that Plaintiff’s claims are premised on defamation, not any sort of civil rights or federal criminal
violation.
4
See Pennsylvania ex rel. Zimmerman v. PepsiCo, 836 F.2d 173, 181 (3d Cir.1988) (“It is axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to dismiss.”).

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insofar as the allegedly defamatory blog posts are outside the First Amendment, Defendants
cannot be protected by the CDA for providing access or otherwise linking to that material. This
argument is unavailing. The CDA is meant to shield interactive computer service providers from
liability for unprotected otherwise actionable speech originating from other information content
providers. Congress intended to eliminate any possible “chilling effect” that could be caused by
“the threat [of] tort-based lawsuits against interactive services for injury caused by the
communications of others.” Ben Ezra, 206 F.3d at 985 n.3 (internal quotation marks and citation
omitted). Accordingly, regardless of whether the third-party speech itself is unlawful, CDA
immunity applies. See, e,g., Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st
Cir. 2007) (“It is, by now, well established that notice of the unlawful nature of the information
provided is not enough to make it the service provider's own speech.”).
Plaintiff’s argument regarding his right to publicity or any other intellectual-property
claim appears to be an attempt to rely on the CDA’s intellectual-property exception. Plaintiff
asserts that Defendants infringed on his right to publicity and privacy by using his likeness to
generate profits for their companies because he is an author. He argues that CDA immunity does
not apply where a corporation publicizes an author in a negative way to create business for that
corporation. Even if this Court were to assume that the CDA’s intellectual exception applies to
state law claims like the ones Plaintiff invokes, 5 Plaintiff’s argument fails as a matter of law.
Plaintiff’s theory seems to be based on references to Mr. Obado that appear as part of the
standard search results of the various search engine Defendants. The mere appearance of
Plaintiff’s name or image as part of the search results displayed in response to a user-generated
query does not mean that the relevant company used Plaintiff’ name for advertising or trade
5

The Ninth Circuit, for example, has expressly held that the intellectual-property exception applies only to federal
intellectual property claims, not to state law claims. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118–11120
1120 n.5 (9th Cir. 2007).

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purposes. There is, in fact, no grounds for any plausible inference that any of the Defendants
used Plaintiff’s name for advertising or trade purposes such as would be necessary to state a
claim for right to publicity. See McFarland v. Miller, 14 F.3d 912, 919 n.11 (3d Cir. 1994) (“In
New Jersey, to sustain an action claiming misappropriation of the image of another, a
commercial purpose must be present.”); Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 909–
10 (D.N.J. 1986) (“[T]he use must be mainly for purposes of trade, without a redeeming public
interest, news, or historical value.”). Mere mention of a plaintiff’s name is not enough to show
appropriation; “nor is the value of his likeness appropriated when it is published for purposes
other than taking advantage of his reputation, prestige, or other value associated with him, for
purposes of publicity.” Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 6923 (N.J.
Super. Ct. App. Div. 1982). Here, the conduct that Plaintiff alleges infringed on his right to
publicity is nothing more than the ordinary “dissemination of news or information” that cannot
give right to a right of publicity claim. Tellado, 643 F. Supp. at 909–10. “Plaintiff's allegations
establish no more than that [Defendants] enable[] internet users to access publically available
materials connected to plaintiff's name. And it is not unlawful to use a person's name ‘primarily
for the purpose of communicating information . . . .” Stayart, 783 F. Supp. 2d at 1057 (quoting
Zacchini v. Scripps–Howard Broadcasting Co., 433 U.S. 562, 574 (1977)). To find otherwise
would allow any Internet search engine to face a claim from anyone whose name or image
appears on the Internet in a way that person does not like. This is exactly what § 230 immunity
tried to prevent.
Plaintiff’s promissory estoppel argument also fails. While not an exception to the CDA,
certain courts have allowed promissory estoppel claims to go forward if there was an enforceable
promise made to the injured party. For example, in Barnes, the Director of Communications of

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Yahoo personally called the plaintiff and promised to “personally” make sure that the content at
issue was removed from Yahoo’s website. Barnes, 570 F.3d at 1098–99. Accordingly, the
Ninth Circuit allowed a promissory estoppel claim to proceed because an enforceable promise
was made to plaintiff. See id. at 1107. This is inapposite here, where Plaintiff has not alleged
that any such legally enforceable promise was made to remove any content by the Defendants.
While Plaintiff has argued in his Opposition that Defendants emailed Plaintiff indicating that
they would investigate Plaintiff’s complaints, this fails to establish an enforceable promise to
actually remove the content. Instead, Plaintiff seeks to impose “[l]iability upon notice,” which
“would defeat the . . . purposes advanced by § 230 of the CDA.” Zeran, 129 F.3d 327, 333 (4th
Cir. 1997); see also Mmubango, 2013 WL 664231, at *1, 3 (rejecting claim that Google was
required to remove links to third-party derogatory statements about the plaintiff after receiving
notice); Gavra v. Google Inc., 5:12-CV-06547-PSG, 2013 WL 3788241, at *2 (N.D. Cal. July
17, 2013) (explaining that liability is not created under § 230 by “refraining from removing
objectionable content, despite receiving notice”). As explained in detail above, any alleged
refusal to remove certain content from search results by the Defendants is nothing more than an
“exercise of a publisher’s traditional editorial functions,” and is preempted by the CDA. Green,
318 F.3d at 471.
Finally, Plaintiff argues that Defendants engaged in criminal conspiracy to violate his
rights. Even if Plaintiff had alleged any facts to sustain this claim, the CDA exception for
federal criminal statutes applies to government prosecutions, not to civil private rights of action
under states with criminal aspects. See M.A. ex rel. P.K. v. Vill. Voice Media Holdings, LLC,
809 F. Supp. 2d 1041, 1054–56 (E.D. Mo. 2011) (rejecting argument that CDA immunity did not
apply to civil remedy provisions for personal injuries under 18 U.S.C. § 2255); Doe v. Bates,

15

5:05-CV-91-DF-CMC, 2006 WL 3813758, at *4–5 (E.D. Tex. Dec. 27, 2006) (“Congress
decided not to allow private litigants to bring civil claims based on their own beliefs that a
service provider's actions violated the criminal laws .”). Accordingly, Plaintiff has failed to
establish that immunity under the CDA does not apply.
In sum, the CDA effectively works to immunize parties like the Defendants from claims
that they displayed information from third parties that may depict a party in an unfavorable light.
“[S]o 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.”
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003); see also Seldon v.
Magedson, 11 CIV. 6218, 2012 WL 4475274, at *16 (S.D.N.Y. July 10, 2012) (“Thus, under
section 230 internet service providers are shielded from liability arising from defamation and
other state-law claims that are premised on posts of, or links to, third-party content.”). This case,
quite simply, attempts to hold Defendants accountable for the publication of allegedly
defamatory blog postings by third-parties. Accordingly, Defendants are entitled to immunity
from all of Plaintiff’s claims—state and federal 6—under § 230 of the CDA.
III.

Conclusion
Plaintiff has attempted to phrase his allegations and arguments in a way to avoid the

reach of § 230. These allegations, however, do not distinguish the complained-of actions of
Defendants from any other website that has published content that led to an innocent person’s
injury. Congress has made the policy decision to hold such websites immune from suits arising
6

A defendant is likewise immune from liability for a claim under federal law that attempts to place a service
provider in a publisher’s role. See, e.g., Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist,
Inc., 519 F.3d 666, 668–69 (7th Cir. 2008) (finding that Section 230 preempts a claim under the Fair Housing Act);
Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 538–39 (E.D. Va. 2003), aff’d sub nom., Noah v. AOL-Time
Warner, Inc., 03-1770, 2004 WL 602711 (4th Cir. Mar. 24, 2004). Here, Plaintiff’s claim under the ADEA clearly
attempts to hold Defendant Intelius liable for its failure to exercise “a publisher’s traditional editorial functions—
such as whether to publish, withdraw, postpone or alter content,” Zeran, 129 F.3d at 330, and is therefore barred
under Section 230. See SAC ¶ 50.

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from these injures. Try as Plaintiff may, this is a defamation suit at its core—not a copyright suit
or civil rights case. It should be noted, however, that Plaintiff is not entirely without recourse.
He may bring suit against the actual bloggers who wrote these defamatory posts. His claims
against Defendants, however, must be dismissed. Accordingly, Defendants’ motions to dismiss
the SAC are granted. Because any amendment to the SAC would be futile, dismissal will be
with prejudice. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). An appropriate Order
accompanies this Opinion.

/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: July 31, 2014

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