Keying the words online personals into the Google search engine will return more than over 35 million hits including Match.com, Chanceforlove.com, Widowsorwidowers.com, Makefriendsonline.com, and Yahoo! Personals. Yahoo! Personals, which calls itself the top online dating site, offers two options. One is for people looking casual dates. It allows users to create their own profiles browse member profiles, and exchange e-mail or instant messages. The second option, called Yahoo! Personals Primer, is for people who want serious relationships. Users must take a relationship test. Then they can use Yahoos computerized matching system to zero in on marriage material. With this service, chat on the phone as well as exchange e-mail.

The Thorny Problem of Misrepresentation

When singles (and others) create their profiles for online dating services, they tend to exaggerate their more appealing features and downplay or omit their less attractive attributes. All users of such services are aware that the profiles may not correspond exactly with reality, but they to assume that the profiles are not complete misrepresentations. In 2006, however, Robert Anthony, individually and on behalf of others, brought a suit against Yahoo in federal district court, alleging fraud and negligent misrepresentation, among other things.

In his complaint, Anthony claimed that Yahoo was not just posting fictitious or exaggerated profiles submitted by users but was deliberately and intentionally originating, creating, and perpetuating false and /or nonexistent profiles. According to Anthony, many profiles used the same exact phrases with such unique dictation and vernacular [language] that such a random occurrence would not be possible. Anthony also argued that some photo images had multiple identitiesthat is, the same photo appeared in several different profiles. He also alleged that Yahoo continued to circulate profiles of actual, legitimate former subscribers whose subscriptions neared its end date, Yahoo would send the subscriber a fake profile, heralding it a potential new match.

Did Yahoo Have Immunity?

Yahoo asked the court to dismiss the complaint on the grounds that the lawsuit was barred by section 230 of the Communications Decency Act (CDA of 1996.a The CDA shields Internet service providers (ISPs) from liability for any information submitted by another information content provider. In other words, an interactive computer service cannot be held liable under state law as a publisher of information that originates from a third party information content provider. The CDA defines an information content provider as any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or nay other interactive computer service.b

The court rejected Yahoos claim that it had immunity under the CDA on the grounds that Yahoo had become an information content provider itself when it created bogus user profiles. The court observed that no case of which this court is aware has immunized a defendant from allegations that it created tortuous content. c Thus, the court denied Yahoos motion to dismiss and allowed Anthonys claims of fraud and negligent misrepresentation to proceed to trial.d.

Assume that Anthony had contacted various of users of Yahoos online dating service only to discover that each users profile exaggerated the users physical appearance, intelligence, and occupation. Would Anthony prevail if he brought a lawsuit for fraudulent misrepresentation against Yahoo in that situation? Why or why not?