MySpace and § 230 Immunity

This post deals with an issue I've addressed before, i.e., whether the operator of a website can be held liable for what is posted on the site.

As I explained in prior posts, § 230 of the Communications Decency Act (47 U.S. Code § 230) immunizes certain parties from liability based upon content they post online. A few months ago, the California Court of Appeals was called upon to decide if § 230 immunity applies to MySpace.

The decision issued in Doe II v. MySpace Inc., 175 Cal.App.4th 561, 96 Cal.Rptr.3d 148 (California Court of Appeals 2009). It addressed claims raised in four cases that were consolidated because they all involved

similar facts and essentially identical legal allegations. In each case, one or more `Julie Does --girls aged 13 to 15 -- were sexually assaulted by men they met through the internet social networking site, MySpace.com (MySpace). The Julie Does, through their parents or guardians, have sued MySpace for negligence, gross negligence, and strict product liability.

Doe II v. MySpace Inc., supra. This is how the Court of Appeals summarized the facts and legal claims advanced in the four suits:

Then 15-year-old Julie Doe II created a MySpace profile in 2005. In 2006, she met a 22-year-old man through MySpace and was sexually assaulted by him at an in-person meeting. As a result, he is currently serving 10 years in prison. Julie Doe III was also 15 when she created a MySpace profile. She subsequently met a 25-year-old man on MySpace, who `lured Julie Doe from her home, heavily drugged her, and brutally sexually assaulted her.’ Julie Doe III's attacker pled guilty to charges stemming from the incident and is currently serving 10 years in prison. Julie Doe IV was 13 years old when she created a MySpace profile. In 2006, she turned 14 years old and met an 18-year-old MySpace user. He and his adult friend met Julie Doe IV, drugged her and took turns sexually assaulting her. As of August 2007, the 18-year-old user is awaiting trial while his friend pled guilty to second-degree felony rape and was sentenced to 4 and one-half years in prison. In 2006, 14-year-old Julie Doe V and 15-year-old Julie Doe VI each met 18-year-old and 19-year-old men on MySpace and were later sexually assaulted by the men at in-person meetings. . . .

The appellants each bring substantially identical causes of action against MySpace for negligence, gross negligence, and strict product liability. In summary, they complain that `MySpace has made a decision to not implement reasonable, basic safety precautions with regard to protecting young children from sexual predators[.] MySpace is aware of the dangers that it poses to underaged minors using [its Web site]. MySpace is aware that its Web site poses a danger to children, facilitating an astounding number of attempted and actual sexual assaults. . . .’ They more specifically allege that MySpace should have implemented `readily available and practicable age-verification software’ or set the default security setting on the Julie Does' accounts to `private.’

Doe II v. MySpace Inc., supra.

MySpace demurred in all four cases. Doe II v. MySpace Inc., supra. As Wikipedia explains, a demurrer is “filed by a party defending against claims . . . in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party.” MySpace’s demurrers were based on § 230immunity, i.e., it said the plaintiff’s claims were barred by the immunity the statute confers on certain parties who post or host content online. Doe II v. MySpace Inc., supra. The trial courts granted the demurrers in each of the four cases and therefore dismissed the suits; the plaintiffs appealed and the appeals were consolidated as Doe II v. MySpace Inc., supra.

MySpace’s immunity claim was primarily based on 47 U.S. Code § 230(c)(1), which provides as follows: “No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(e)(3) applies this provision to civil claims brought under state law; it states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The Court of Appeals began its analysis of the immunity issue by noting that § 230 immunity requires proof of three elements:

(1) MySpace is an interactive computer services provider, (2) MySpace is not an information content provider with respect to the disputed activity, and (3) appellants seek to hold MySpace liable for information originating with a third party user of its service.

Doe II v. MySpace Inc., supra. The appellants relied on the last two elements, “arguing that they view MySpace as an information content provider and do not hold it liable for the communications between the Julie Does and their assailants, but for . . . failure to institute reasonable security measures.” Doe II v. MySpace Inc., supra.

The Court of Appeals began its ruling on the third element by noting that § 230 immunity is to be construed broadly; Congress wanted to immunize Internet services providers from civil liability in order to minimize restrictions on online speech. Doe II v. MySpace Inc., supra. The court consequently found that § 230 immunity shielded MySpace:

That appellants characterize their complaint as one for failure to adopt reasonable safety measures does not avoid . . . section 230. It is undeniable that [they] 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. Appellants argue they do not `allege liability on account of MySpace's exercise of a publisher's traditional editorial functions, such as . . . deciding whether . . . to publish certain material, which is the test for whether a claim treats a website as a publisher’. . . . But that is precisely what they allege; that is, they want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity -- to restrict or make available certain material -- is expressly covered by section 230.

Doe II v. MySpace Inc., supra.

The Court of Appeals then turned to the second issue, i.e., whether MySpace was, or was not, an information content provider “with respect to the disputed activity”. Doe II v. MySpace Inc., supra. The appellants claimed it was an information content provider and

thus is not immunized by section 230. According to appellants, `MySpace acted as a content provider when it collaborated with the Does and their eventual attackers to create and then flesh out their MySpace profiles. . . . MySpace also acted as a content provider when it allowed the attackers to channel information in profiles, search and browse profiles for particular characteristics and then use the results of those queries to locate, contact, and eventually sexually assault the Julie Does.’

Doe II v. MySpace Inc., supra. The appellants relied on the U.S. Court of Appeals for the Ninth Circuit's ruling in Fair Housing Council v. Roommates.Com. Roommates.com

ran a Web site to match people renting out spare rooms with people looking for a place to live. Before a subscriber can search listings or post housing opportunities on the Web site, he or she was required to answer a series of questions about his or her sex, sexual orientation, and whether he or she would bring children to a household.

Doe II v. MySpace Inc., supra. When Roommates.com was sued for violating various fair housing laws, the Ninth Circuit held it was an information content provider as to these questions because it created them, presented a limited choice of answers to the questions and designed its “systems to limit listings based on sex, sexual orientation, and presence of children. Further, Roommates.com forced subscribers to answer these questions as a condition of using its services.” Doe II v. MySpace Inc., supra. The Ninth Circuit held that the site lost § 230 immunity for these questions but retained it for other portions of the site. Doe II v. MySpace Inc., supra.

The California Court of Appeals held that the Ninth Circuit’s holding in Roommates.com did not apply to the case before it because the appellants did not claim that “MySpace's profile questions are discriminatory or otherwise illegal” or that it requires “members to answer the profile questions as a condition of using the site.” Doe II v. MySpace Inc., supra. It noted that the strongest case for applying § 230 immunity exists when a site gives users “unfettered discretion as to what they” post, which is not true of MySpace:

Myspace members are not allowed unfettered discretion as to what they put in their profile. Instead, it is alleged that MySpace users are urged to follow the on-screen prompts to enter a name, email address, gender, postal code, and date of birth. Users are also `encouraged’ to enter personal information such as schools, interests and personality and background and lifestyle. This information is organized by the site and is searchable by other users.

Doe II v. MySpace Inc., supra. The court ultimately found that this was not enough to transform MySpace into an information content provider and deprive it of § 230 immunity. The California Court of Appeals based its holding on the fact that the appellants presented no evidence that MySpace did nothing to encourage the posting of the content at issue in the suit. Doe II v. MySpace Inc., supra. The appellate court therefore affirmed the lower courts’ dismissal of the four actions against MySpace. Doe II v. MySpace Inc., supra.

A federal district court judge reached the same conclusion in Doe v. MySpace, Inc., 629 F. Supp.2d 663 (U.S. District Court for the Eastern District of Texas 2009). The plaintiff in this case also sued MySpace for “negligence, gross negligence and strict product liability for failing to implement reasonable safety measures to protect minors” after her daughter was allegedly “`lured from her home and sexually assaulted by a sexual predator, who . . . orchestrated his sexual assault through the MySpace.com website.’” Doe v. MySpace, supra. This plaintiff also relied on the Ninth Circuit’s Roommates.com decision in arguing that MySpace is an “information content provider” which is not entitled to § 230 immunity. The judge in this Doe case held that the Ninth Circuit’s decision did not apply here:

The Ninth Circuit repeatedly stated . . . that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles. . . . As such, the court finds that the Plaintiff's argument lacks merit because the facts of the instant case are distinguishable from those in Roommates.com.

Doe v. MySpace, inc., supra.