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Doe v. MySpace 528 F.3d 413 (5th Cir. 2008) is a 2008 Fifth Circuit Court of Appeals ruling that affirmed a lower court decision finding that MySpace was not liable for interactions between an adult and a minor over its site.^[1]

Background

In the summer of 2005, Plaintiff Julie Doe created a MySpace profile and listed her age as 18 years old. Julie was actually 13 at the time. Because MySpace profiles of members 18 and over are publicly accessible by default, 19 year old Peter Solis was able to contact Julie. After some communication, both on and off-line, Julie and Solis met. Julie was 14 years old at the time. During the meeting, Solis sexually assaulted Julie.

The District Court Ruling

In 2006, Julie Doe, along with her mother,^[2] sued MySpace for negligence, gross negligence, fraud, and negligent misrepresentation. Specifically, the Does argued that MySpace should have "implemented basic safety measures to prevent sexual predators from communicating with minors." The fraud and negligent misrepresentation claims were eventually dropped from the lawsuit. On February 1, 2007, the District Court of Western Texas heard oral arguments, and subsequently dismissed the case. The district court ruled that both Section 230 of the Communications Decency Act (CDA) and Texas law barred the Does' claims. In particular, the court found that, despite artful pleading, the Does were actually attempting to hold MySpace liable for its "publishing, editorial, and/or screening capacities." Claims based on these capacities, the court decided, were barred by the CDA.^[3] In dismissing the case, the court noted that both policy considerations and past CDA cases supported granting MySpace immunity. With regard to Texas law, the court declined to extend Texas premise liability law to the Internet context.^[4]

The Appeal

The Does appealed to the Fifth Circuit in 2008. The Does reiterated that they were not seeking to hold MySpace liable as a publisher, but instead were seeking to hold the website liable for failing "to implement basic safety measures to protect minors." The Does further argued that MySpace did not qualify for CDA immunity because the website was partially responsible for creating the content at issue. Specifically, the Does alleged that MySpace facilitated the creation of member profiles and chose the information its members shared through an online questionnaire. The CDA does not shield websites that are in part responsible for creating the content at issue in a lawsuit.^[5]

The 5th Circuit Ruling

The Fifth Circuit disagreed with the Does and affirmed the lower court's decision.

With respect to the Does' negligence arguments, the court found that the claims were barred by the CDA. In its analysis, the court observed that prior courts had construed CDA immunity "broadly in all cases arising from the publication of user-generated content." Specifically, the court relied on Green v. AOL^[6] -- a Third Circuit Court of Appeals case that granted CDA immunity to AOL against a "failure to protect" claim. In the court's view, the Does' allegations were similar to Green’s, and were "merely another way of claiming that MySpace was liable for publishing the communications." Claims based on a website's publication of third-party content, the court ruled, were prohibited by the CDA.

With regard to the argument that MySpace partially created Julie and Solis’s posted content, the court ruled that the Does were barred from making this argument on appeal because they had not raised the issue earlier in district court. The court specifically noted that the trial record showed the Does' did not complain at all about content, and instead had “stressed that their cause of action was rooted in the fact that MySpace should have implemented safety technologies…”

Subsequent Background

In November 2008, the Supreme Court denied certiorari.^[7]

References

1. ^ Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008).
2. ^ Citizen Media Law Project, Doe v. MySpace, (Retrieved Mar. 26, 2009).
3. ^ "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)
4. ^ Doe v. MySpace, 474 F. Supp. 2d 843 (W.D. Tex. Feb. 13, 2007).
5. ^ "The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3) (emphasis added).
6. ^ Green v. AOL, 318 F.3d 465 (3rd Cir. 2003).
7. ^ Thomas O'Toole, High Court Declines Review of MySpace CDA 230 Case, E-Commerce and Tech Law Blog (Nov. 17, 2008).