Fifth Circuit Holds No Safety Exception to Communications Decency Act ISP Immunity
By Anna Volftsun — Edited by Nicola Carah
Doe v. MySpace, Inc.
Fifth Circuit, May 16, 2008, No. 07-50345
On May 16, 2008, the Fifth Circuit unanimously upheld the Western District of Texas, finding Section 230(c)(1) of the Communications Decency Act (“CDA 230”) barred a parent’s claims for negligence and gross negligence against the social networking site, MySpace.com. The suit was brought on behalf of Doe’s 13-year-old daughter, who misrepresented her age to create a profile on MySpace, and was subsequently contacted and allegedly sexually assaulted by a 19-year-old MySpace user.
Julie Doe, a 13-year-old minor, represented her age as 18 when creating a MySpace profile. MySpace defaults all 14-year-old and 15-year-old profiles to “private,” which restricts profile access to confirmed “friends” only. But as a result of Doe’s misrepresentation, her profile was made “public” and viewable by the all other MySpace users, including 19-year-old Pete Solis. Solis contacted Doe, the two exchanged phone numbers, and after communicating several times off-line, arranged a meeting at which Solis allegedly sexually assaulted Doe.
Eric Goldman of the Technology and Marketing Law Blog sees this as a victory for proponents of strong CDA 230 immunity. He notes that several cases leading up to the decision, including Fair Housing Council of San Fernando Valley v. Roommates.com, Mazur v. eBay, and Doe v. FriendFinder, Inc., had evinced a trend towards loosening the immunity provided to internet providers under the statute. While Goldman hopes the MySpace decision will discourage plaintiffs from continuing to bring claims against websites for failing to protect or police its users, he remains “flummoxed by the number of cases [he is] seeing involving teens making poor (and, in some cases, life-altering) decisions using MySpace.”
Sam Bayard of the Citizen Media Law Project is more ambivalent about the outcome. While he believes that the CDA 230 is an important protection for internet service providers, he thinks the decision may have gone too far. He paraphrases John Palfrey of the Berkman Center for Internet and Society, who noted in an internal email:
“MySpace is a powerful corporate intermediary that has broad ability to control the networked public space it makes available to minors and adults alike, and it doesn’t necessarily serve any of the congressional objectives behind CDA.”
Full Text of the Communications Decency Act of 1996 at the US Government Printing Office.
Suing on behalf of herself and her daughter, Doe’s mother originally filed claims for fraud, negligent misrepresentation, negligence and gross negligence against MySpace and its parent company, News Corporation, in Texas state court, alleging that MySpace failed to implement adequate safety measures to prevent communications between minors and sexual predators on its website. The Does then withdrew the suit and refiled the case in the Southern District of New York, in which they asserted the same claims against MySpace. The case was transferred to the Western District of Texas, where the Does voluntarily withdrew the claims for fraud and negligent misrepresentation. The district court held that the negligence and gross negligence claims were barred by CDA 230. The Fifth Circuit Court of Appeals upheld the lower court, reaffirming that despite artful pleading, internet service providers will not be held liable for content generated by its users.
CDA 230(c)(1), also known as the “Good Samaritan” provision, provides immunity to providers and users of an “interactive computer service” from civil liability arising out of information that is provided by third-party content providers. Invoking the doctrine of premises liability, the Does argued that their claims were not barred by CDA 230 because they were not suing MySpace in its capacity as a “publisher,” but rather for failing to take adequate steps to protect minors on its site. The Fifth Circuit upheld the district court’s finding that these negligence claims were simply a “disingenuous” attempt to circumvent the CDA 230. Judge Clement, writing for the court, affirmed the district court’s finding that the negligence claims were based on disapproval of how MySpace screened and edited user content, which were essentially directed against MySpace in its publishing capacity and thus barred by CDA 230(c)(1). The Court declined to address the Does’ second argument that MySpace was partially responsible for the content of the site (an argument that proved successful in Fair Housing Council of San Fernando Valley v. Roommates.com) because the issue was not raised prior to the appeal.
Relevant Court Documents (Hosted by Citizen Media Law Project)
Texas State Court Complaint (06-19-2006)
New York State Court Complaint (09-25-2006)
Order on Motion to Dismiss – Western District of Texas (02-13-2007)
The Technology & Marketing Law Blog tracks the story in MySpace.com Sued for $30 Million, Doe v. MySpace.com Continued, MySpace Suit for Liability for Sexual Assault Dismissed.
THELEN excerpts Judge Easterbrook, summing up CDA 230
Fenwick hosts Websites’ CDA Immunity: An Ever-Expanding Universe?
1 Privacy & Data Protection Legal Rep., No. 11, at 1 (ALM LJN Dec. 2006)