August 25, 2007
Website Isn't Liable When Users Lie About Their Ages--Doe v. SexSearch
By Eric Goldman
Doe v. SexSearch.com, 2007 WL 2388913 (N.D. Ohio Aug. 22, 2007)
This case adds to the burgeoning 230 jurisprudence involving people looking online for love or sex. (Others that come to mind include Carafano, Anthony, Landry-Bell, Barnes and Doe v. Myspace) The court broadly construes 47 USC 230 to absolve the website of liability for user-supplied content--in this case, a user's misrepresentation of her age. It's a particularly refreshing discussion/outcome after the Ninth Circuit screwed up 230 jurisprudence in the Roommates.com case, which seemingly could have applied but was not discussed at all by the court.
47 USC 230
Defendants operate a website that helps people hook up to have sex. Roe posted a profile saying that she was 18 and wanted sex. After Doe connected with Roe via the profile, they met offline at Roe's home and had "consensual" sex. But Roe was actually 14, and Doe was busted for felony statutory rape. Doe turned around and sued the website on 14 counts, which the court summarizes as claims that "(a) Defendants failed to discover Jane Roe lied about her age to join the website, or (b) the contract terms are unconscionable."
The Defendants defended the lawsuit on 47 USC 230. On its face, it looks this like this lawsuit might very well fall into one of the cracks opened by the Roommates.com decision, especially because the website apparently used structured data collection to build the profile and gather the age information. However, the plaintiff appears not to have cited Roommates.com (although the Carafano case was cited and discussed). Instead, the plaintiff rehashed the lame and futile arguments that the website loses 230 when it reserves the right to edit the content and that 230 only preempts defamation. These are loser arguments and I cannot believe plaintiffs still try those arguments. Hey plaintiffs, if your lawsuit might be preempted by 230 and these are the best arguments you can make, save your time and money and skip the lawsuit altogether.
In any case, the court has no problem concluding that (1) the website is an ICS, (2) the user supplied the content at issue (on the structured data issue, the court says "the mere fact SexSearch provided the questionnaire Jane Doe answered falsely is not enough to consider SexSearch the developer of the false profile"), and (3) 230 preempts "all civil liability" (other than the statutorily enumerated exceptions), whether the claim is based in tort or otherwise.
However, this case exposes a troublesome area for 230 jurisprudence. Plaintiff alleges that the website represented that all members were over 18. This statement is the website's own words presumably written by its employees, but the statement can be untrue only if users provide false info. Is such a marketing statement protected by 230 when, in fact, users do lie? (For a slightly analogous circumstance, see Anthony v. Yahoo, which was cited by the court). This court wasn't asked this Q in this manner, so we don't get a definitive answer. I think the answer should be yes, though it may depend on the exact words of the marketing statement. For example, if the website said that it confirms that all members are adults by checking their drivers' license, but in fact it doesn't check drivers' licenses, then I think we're outside 230's reach--the falsity is in the website's description of its behavior, not in the user-supplied information. In this case, the plaintiff alleged that the website said it verified profiles, but there was no allegation of age verification.
The court independently dismisses the contract claims because the user agreement said that the website does not "assume any responsibility for verifying[ ] the accuracy of the information provided by other users of the Service."
The court also dismissed the UCC breach of warranty claim because the membership was a non-UCC service. While this isn't entirely wrong, a lot of us (outside of Virginia and Maryland lawyers) treat online services as governed by the UCC, so this casual dismissal may raise some future complexity.
The court also rejects a challenge to the contract on unconscionability grounds. If you're interested in unconscionability analyses of online user agreements, check it out.
Lurking in this case are some deeply troubling issues about how and why a 14 year old girl accessed an adults-only online sex site, solicited sex from a stranger and had sex with him at her house. However, the court rightly realized that the legally significant event did not occur when Doe read Roe's online profile and self-reported age. Instead, the locus of harm occurred offline--as the court says, "Plaintiff clearly had the ability to confirm Jane Roe’s age when he met with her in person, before they had sex, yet failed to do so."
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