MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace

By Eric Goldman

Doe v. MySpace Inc., 2008 WL 2068064 (5th Cir. May 16, 2008)

2008 has been a tough year for 47 USC 230. The immunization is still robust, but this year we’ve seen significant plaintiff opportunities created by the, Mazur and Friendfinder cases (and others). After this string of defense losses, yesterday’s Fifth Circuit’s opinion in Doe v. MySpace is refreshing. In a short but spirited opinion, the court hands MySpace (and 230 enthusiasts!) a clean and emphatic victory.

You probably recall this case when it was first filed. This is one of several lawsuits involving underage girls (who have typically lied about their age) who are sexually assaulted by men they met through and communicated with via MySpace. The plaintiffs in this case tried to avoid a frontal assault on 230 by arguing that MySpace was negligent policing its premises (a type of premises liability).

Like the district court, the Fifth Circuit makes short work of this attempted plead-around. After noting that the “Does do not present any caselaw to support their argument,” the court correctly explains that failure-to-protect/failure-to-police arguments are really just thinly disguised claims that the plaintiffs don’t like the site’s editorial practices, which is exactly what 230 bars:

Their claims are barred by the CDA, notwithstanding their assertion that they only seek to hold

MySpace liable for its failure to implement measures that would have prevented Julie Doe from communicating with Solis. Their allegations are merely another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace’s role as a publisher of online third-party-generated content.

I know this case won’t stop plaintiffs’ efforts to claim that a site’s failure-to-police/failure-to-protect excludes the site from 230’s coverage, but it should.

In a last-ditch effort, the plaintiffs try to fit into the exception, claiming that “MySpace is not immune under the CDA because it partially created the content at issue, alleging that it facilitates its members’ creation of personal profiles and chooses the information they will share with the public through an online questionnaire.” Because the plaintiffs had made inconsistent factual representations in the trial court proceedings (basically, acknowledging that the issue here was failure-to-protect, not joint content creation), the court estops the plaintiffs from raising the issue now. As part of reinforcing the inconsistency of the new argument, the appellate court quotes a transcript from the trial court:

THE COURT: I want to get this straight. You have a 13-year-old girl who lies, disobeys all of the instructions, later on disobeys the warning not to give personal information, obviously, [and] does not communicate with the parent. More important, the parent does not exercise the parental control over the minor. The minor gets sexually abused, and you want somebody else to pay for it? This is the lawsuit that you filed?

MR. ITKIN [Counsel for the Does]: Yes, your Honor.

Tough argument there, counsellor.

Even though the Fifth Circuit clearly got it right, and the plaintiffs never should have been brought this lawsuit against MySpace, I remain flummoxed by the number of cases I’m seeing involving teens making poor (and, in some cases, life-altering) decisions using MySpace. MySpace is taking steps to improve its age verification, which I applaud, but this should not simply be about minimizing its (negligible) legal risk. Instead, based on the limited empirical evidence I’ve seen, I think MySpace should feel a strong moral obligation to reduce what is clearly an irresistible temptation by many teens to misuse the site.