February 16, 2007
MySpace Suit for Liability for Sexual Assault Dismissed
By John Ottaviani
Doe v. MySpace, Inc., No. A-06-CA983-SS (W.D. Tex. 2/13/2007).
“If anyone had a duty to protect Julie Doe, it was her parents, not MySpace.” (Sparks, J.)
This is a HUGE win for MySpace! Plaintiff’s negligence and gross negligence claims were thrown out on two separate theories.
Eric and I have been debating for months whether Section 230 of the Communications Decency Act applies to real world physical injury relating to, but not directly resulting from, the publication of material on the Internet (here, the plaintiffs allege that a 14-year-old was sexually assaulted after giving her cell phone number to a 19-year-old she first met on MySpace.com, and that MySpace.com was negligent for failing to implement basic safety measures to prevent sexual predators from communicating with minors on MySpace). While the contest is not over, we finally have our first decision, and the score is now Eric – 1/John - 0.
At the outset, Judge Sam Sparks of the United States District Court for the Western District of Texas reviewed the legislative history of the Communications Decency Act of 1996 and several of the cases upholding immunity of an interactive service provider under Section 230 for claims other than defamation. In particular, the court relied on Zeran v American Online, Inc., a 1997 case where the victim of a vicious prank sued America Online, Inc. for failing to remove a false advertisement offering T-shirts featuring tasteless slogans related to the 1995 Oklahoma City bombing and instructed interested buyers to call the plaintiff to place an order. In that case, the Fourth Circuit affirmed the dismissal of the claims, because “Section 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”. In the MySpace case, the Court analogized the girl’s allegations that MySpace knew sexual predators were using the service to communicate with minors and failed to react appropriately, to Zeran’s claims that AOL failed to act quickly enough to remove the ads and to prevent the posting of additional ads after AOL was on notice that the content was false.
In my view, this analogy does not hold up. (Eric will disagree). In Zeran, the plaintiff argued that he was harmed because AOL failed to pull a defamatory posting quickly enough. In this case, the plaintiff’s claim was decidedly different: she claimed that she was harmed because of MySpace’s negligence in failing to take appropriate security measures, not because of any posting on the website. The Court, however, found this to be “artful pleading”, and dismissed the argument. “No matter how artfully plaintiffs seek to plead their claims, the Court views plaintiffs’ claims as directed toward MySpace in its publishing, editorial and/or screening capacities”. The Court concluded that MySpace was entitled to immunity under Section 230 and dismissed the plaintiff’s negligence and gross negligence claims with prejudice.
However, it is not clear whether this was a holding or is dicta, and here is where my theory of the case takes over. The Court then went on to also dismiss the negligence and gross negligence claims by refusing to impose a legal duty on MySpace to institute reasonable safety measures to protect minors from sexual predators. The Court refused to impose such a duty on MySpace, “when a minor is harmed after wrongfully stating her age, communicating with an adult, and publishing her personal information.” The Court also rejected an attempt by the plaintiffs to extend premises liability cases to the Internet context, particularly here, where MySpace provides its service to users for free. The Court analogized to the 2003 Doe v. GTE Corp. case, where the Seventh Circuit affirmed the dismissal of claims against the Internet services and web-hosting services provider for hosting images of athletes who were unknowingly recorded unclothed in a locker room, because web-hosting services have no duty to investigate their clients’ activities or prevent potential injury that results in therefrom.
The Court also dismissed the fraud and misrepresentation claims because they did not meet the heightened pleading standard of Federal Rules Of Civil Procedure 9(b). Rule 9(b) requires allegations of fraud to be stated with particularity. The court found that the plaintiff had not plead her fraud and misrepresentation claims with sufficient particularity and dismissed these claims without prejudice. According to the opinion, plaintiffs’ counsel also admitted in open court that the plaintiffs no longer wished to pursue the fraud and misrepresentation claims because the real basis of their cases was negligence.
It is not clear which of the Court’s Section 230 analysis or its negligence analysis is dicta, as it clearly did not need to go down both paths to dismiss the negligence and gross negligence claims. On the other hand, because the court did reject these claims on both grounds, MySpace is in a great position to fend off similar claims in other pending and future lawsuits. As a result, Eric and I will continue to differ on this issue until we receive more guidance.
In the end, while I have a great deal of sympathy for the girl and her family, as I have said previously, I have a hard time seeing that MySpace.com has any legal duty to protect its members (under age or of age), how it can protect its 14-year-old members better than their parents, or that there is sufficient causation to impose liability on MySpace for actions that occur in the physical world. Judge Sparks apparently agrees with me, with what is a candidate for the best legal quote of the first quarter of 2007, if not for the entire year: “If anyone had a duty to protect Julie Doe, it was her parents, not MySpace.”
A copy of the decision can be found here.
[Eric's addendum: I just wanted to make 2 brief additional points to John's excellent post. First, as he predicted, I disagree with him about the merits of this case. As this case and others have repeatedly shown, 230 is even broader than people initially assume. It was obviously applicable here to the negligence claim, and when the plaintiffs gave up their misrepresentation claim, they doomed themselves to being squarely governed by the Zeran precedent. Second, I think this case is a huge win for MySpace and an interesting read generally (especially the discussion about virtual premises), so I'm planning to add this case to my Cyberspace Law syllabus next year. Whether you agree with the outcome or not, the opinion is worth reading. Eric.]
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