MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
By Eric Goldman
Doe II v. MySpace, Inc., 2009 WL 1862779 (Cal. App. Ct. June 30, 2009)
Capping off a busy month for 47 USC 230 jurisprudence, MySpace has won another case over its role in facilitating sexual assaults of underaged female users. This victory follows the 2008 Fifth Circuit Doe v. MySpace case and Doe IX v. MySpace from May. (Note: although California is apparently lagging behind Texas in Doe complaints, this opinion consolidates 4 plaintiffs, including Julie Doe V). As with the previous lawsuits, this lawsuit is generally premised on MySpace’s allegedly inadequate measures to protect its underaged users and use appropriate age-verification technology.
The court could have simply tossed the case by citing the Fifth Circuit opinion, which had already addressed and rejected these arguments. (I believe the plaintiffs’ attorneys are the same in both cases). As the court points out, the plaintiffs didn’t really try to work around the Fifth Circuit opinion: “Not surprisingly, appellants cannot and do not distinguish the Fifth Circuit’s opinion…which is exactly on point. They only contend that the Fifth Circuit was wrong.”
Nevertheless, after canvassing the federal precedent (all of which is adverse to the plaintiff), the court considers if California’s 230 jurisprudence leads to a different result. The court cited three California cases that have used 230 to reject negligence claims against service providers (Barrett, Delfino, Gentry). The court then correctly concludes that plaintiffs seek to hold MySpace liable for user-to-user communications:
It is undeniable that appellants seek to hold MySpace responsible for the communications between the Julie Does and their assailants. At its core, appellants want MySpace to regulate what appears on its Web site.
That’s precisely what 230 precludes plaintiffs from being able to do. The plaintiffs’ attempt to focus on the offline physical harm doesn’t change that analysis:
In all but one of these [precedent 230] cases, the harm actually resulted from conduct that occurred outside of the information exchanged, whether that information was actionable or not.
This is a crucial point that sometimes gets overlooked. The 1997 Zeran case involved online postings that led to offline harms–in that case, a high volume of angry telephone calls, including death threats. And Zeran was a negligence case, not a defamation case. So the MySpace cases, alleging the service provider was negligent in preventing offline harms, seem to be substantively indistinguishable from the Zeran precedent from a dozen years ago.
The plaintiffs also try a Roommates.com attack on 230, arguing that MySpace loses 230 protection because it helped users create profiles and structured the search of these profiles. Doe IX v. MySpace had already expressly addressed and rejected this argument. The court doesn’t cite Doe IX (or any other cases interpreting Roommates.com, for that matter), but still rejects the argument:
Unlike the questions and answers in Roommates.com, however, Appellants do not allege that MySpace’s profile questions are discriminatory or otherwise illegal. Neither do they allege that MySpace requires its members to answer the profile questions as a condition of using the site.
The voluntariness of the profiles was the same ground relied upon in the Doe IX case. The lack of illegality in the questions is a new point.
So, yet again, Roommates.com is cited in a defense win. My updated scorecard on Roommates.com citations is 8-2 for the defense:
Roommates.com Cited for Defense: GW Equity v. Xcentric, Best Western v. Furber, Goddard v. Google, Joyner v. Lazzareschi, Atlantic Records v. Project Playlist, Barnes v. Yahoo (note: although the case was a partial loss for the defendant, the Roommates.com discussion came in the defense-favorable part), Doe IX v. MySpace and this opinion (Doe II v. MySpace)