Doe v MySpace
Encyclopedia
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 immune under the Communications Decency Act
of 1996 from liability resulting from a sexual assault of a minor.
(Julie Doe), then age thirteen, lied about her age, representing that she was eighteen years old, and created a profile on MySpace.com. In April 2006, a nineteen year old male (Pete Solis) contacted her through the site. The two parties communicated offline and formed a relationship. They met in person on May 12, 2006, and Solis sexually assaulted Plaintiff at this meeting. On May 13, 2006, Plaintiff's mother called the Austin
Police Department to report the sexual assault of her daughter. Solis was subsequently arrested and indicted by a grand jury at the Travis County District Attorney's Office for Sexual Assault, a second degree felony
.
The minor and her mother sued MySpace
and its parent, News Corp., for negligence
, fraud
, and negligent misrepresentation. Additionally, they sued Solis, the assailant
, for sexual assault
and intentional infliction of emotional distress
.
Plaintiff
s first filed a lawsuit in Texas state court, however filed a motion for nonsuit which the Texas court granted. Subsequently, Plaintiffs refiled in Bronx County, New York, however this time they did not name Solis as a defendant. Defendants immediately removed the case, pursuant to 28 U.S.C. § 1441, to United States District Court for the Southern District of New York
, and simultaneously motioned for a transfer of venue, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Western District of Texas
. Finally, Defendants filed a motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure
12(b)(6).
The Texas District Court dismissed with prejudice Plaintiffs' negligence and gross negligence claims, finding that Plaintiffs' claims were barred by the Communications Decency Act
(CDA) § 230 and Texas common law. Plaintiffs withdrew their claims for fraud and negligent misrepresentation; thus the District Court dismissed those claims without prejudice. Thereafter, Plaintiffs appealed the District Court's decision on their negligence and gross negligence claim, arguing that § 230 is both inapplicable and further does not fully immunize MySpace from taking reasonable steps to ensure a minors' safety.
Plaintiffs filed a writ of certiorari to the Supreme Court of the United States
who declined to hear the case.
of 1996 (CDA). Moreover, Defendants asserted Plaintiffs' negligence claims fail under Texas common law doctrine and the negligent misrepresentation claims do not satisfy the pleading standard of Federal Rule of Civil Procedure 9(b).
On February 13, 2007 the District Court
ordered the dismissal of Plaintiffs' claims of negligence and gross negligence
with prejudice and claims of fraud
and negligent misrepresentation without prejudice.
and the Fourth Circuit Court of Appeals holding in Zeran v. America Online, Inc.
to guide them in statutory construction. Ultimately, the court viewed Plaintiffs' claims as directed toward MySpace in its "publishing, editorial, and/or screening capacities." Thus, the court held that Defendants were entitled to immunity under the CDA and therefore dismissed Plaintiffs' negligence and gross negligence claims under Federal Rules of Civil Procedure Rule 12(c).
The District Court stated that the CDA also immunizes "interactive computer services" from liability based on efforts to self regulate material:
In reflection of Congress's recognition of the potential liability for the implementation of safety policies creating a disincentive for "interactive computer services" to implement safety features at all, the District Court held that Plaintiffs' claims are barred by the CDA § 230(c)(2)(A).
wrote the opinion of the court.
case that granted CDA immunity to AOL against a "failure to protect" claim. In the court's view, Plaintiffs' 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. Moreover, the court stated that parties who are complaining that they were harmed by a website's publication of user-generated content have an alternative claim against the third party content-generator.
In response to Plaintiffs' attempt to distinguish their case from Carafano and Zeran the Fifth Circuit reiterated the district courts ruling stating:
With regard to the argument that MySpace partially created Julie and Solis’s posted content, the court ruled that Plaintiffs were barred from making this argument on appeal because they had not raised the issue earlier to the District Court. The court specifically noted that the trial record showed Plaintiffs 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…”
Finally, the Court rejected Plaintiffs' argument that the CDA should not apply to MySpace because it was partially responsible for creating the information exchange. The court points to the fact that Plaintiffs' counsel neglected to present this argument to the district court and thus are barred from making the aforementioned argument on appeal. Ultimately, The court concluded that Plaintiff's negligence and gross negligence claims were barred by the CDA, and thus the court stated "there is no need to apply § 230(c)(2) or to access the viability" of Plaintiffs' claim under Texas common law in the absence of the CDA.
In November 2008, the Supreme Court
denied certiorari
.
"Doe v. Myspace, Inc. Et Al." Justia Dockets & Filings. Web. 31 Oct. 2010.
Goldman, Eric. "Concurring Opinions » MySpace Sued for Facilitating Offline Sexual Assaults." Concurring Opinions. 18 Jan. 2007. Web. 01 Nov. 2010..
Goldman, Eric. "Technology & Marketing Law Blog: MySpace Gets 230 Win in Fifth Circuit--Doe v. MySpace." Technology & Marketing Law Blog by Eric Goldman. 17 May 2008. Web. 31 Oct. 2010..
O'Toole, Thomas. "TechLaw: High Court Declines Review of MySpace CDA 230 Case." E-Commerce and Tech Law. 17 Nov. 2008. Web. 01 Nov. 2010..
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
ruling that affirmed a lower court decision finding that MySpace
MySpace
Myspace is a social networking service owned by Specific Media LLC and pop star Justin Timberlake. Myspace launched in August 2003 and is headquartered in Beverly Hills, California. In August 2011, Myspace had 33.1 million unique U.S. visitors....
was immune under the Communications Decency Act
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
of 1996 from liability resulting from a sexual assault of a minor.
Facts & Procedural Posture
In the summer of 2005, PlaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
(Julie Doe), then age thirteen, lied about her age, representing that she was eighteen years old, and created a profile on MySpace.com. In April 2006, a nineteen year old male (Pete Solis) contacted her through the site. The two parties communicated offline and formed a relationship. They met in person on May 12, 2006, and Solis sexually assaulted Plaintiff at this meeting. On May 13, 2006, Plaintiff's mother called the Austin
Austin
Austin is the capital of the U.S. state of Texas.Austin may also refer to:-In the United States:*Austin, Arkansas*Austin, Colorado*Austin, Chicago, Illinois*Austin, Indiana*Austin, Minnesota*Austin, Nevada*Austin, Oregon...
Police Department to report the sexual assault of her daughter. Solis was subsequently arrested and indicted by a grand jury at the Travis County District Attorney's Office for Sexual Assault, a second degree felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
.
The minor and her mother sued MySpace
MySpace
Myspace is a social networking service owned by Specific Media LLC and pop star Justin Timberlake. Myspace launched in August 2003 and is headquartered in Beverly Hills, California. In August 2011, Myspace had 33.1 million unique U.S. visitors....
and its parent, News Corp., for negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
, and negligent misrepresentation. Additionally, they sued Solis, the assailant
Assailant
Assailant is a Swedish power metal band formed in 2004 formerly signed on the label Dockyard 1. Their debut album Nemesis Within was released in May 2006.-The Sound:...
, for sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
and intentional infliction of emotional distress
Intentional infliction of emotional distress
Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...
.
Plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s first filed a lawsuit in Texas state court, however filed a motion for nonsuit which the Texas court granted. Subsequently, Plaintiffs refiled in Bronx County, New York, however this time they did not name Solis as a defendant. Defendants immediately removed the case, pursuant to 28 U.S.C. § 1441, to United States District Court for the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
, and simultaneously motioned for a transfer of venue, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Western District of Texas
United States District Court for the Western District of Texas
The United States District Court For the Western District Of Texas is a Federal district court. The court convenes in San Antonio with divisions in Austin, Del Rio, El Paso, Midland, Pecos, and Waco. It has jurisdiction in over 50 Trans-Pecos, Permian Basin and Hill Country counties of the U.S....
. Finally, Defendants filed a motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
12(b)(6).
The Texas District Court dismissed with prejudice Plaintiffs' negligence and gross negligence claims, finding that Plaintiffs' claims were barred by the Communications Decency Act
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
(CDA) § 230 and Texas common law. Plaintiffs withdrew their claims for fraud and negligent misrepresentation; thus the District Court dismissed those claims without prejudice. Thereafter, Plaintiffs appealed the District Court's decision on their negligence and gross negligence claim, arguing that § 230 is both inapplicable and further does not fully immunize MySpace from taking reasonable steps to ensure a minors' safety.
Plaintiffs filed a writ of certiorari to the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
who declined to hear the case.
Defendants Move for Motion to Dismiss
Defendants moved to dismiss the case with prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting immunity from suit under the Communications Decency ActCommunications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
of 1996 (CDA). Moreover, Defendants asserted Plaintiffs' negligence claims fail under Texas common law doctrine and the negligent misrepresentation claims do not satisfy the pleading standard of Federal Rule of Civil Procedure 9(b).
On February 13, 2007 the District Court
District court
District courts are a category of courts which exists in several nations. These include:-Australia:District Court is the name given to the intermediate court in most Australian States. They hear indictable criminal offences excluding treason, murder and, in some States, manslaughter...
ordered the dismissal of Plaintiffs' claims of negligence and gross negligence
Gross negligence
Gross negligence is a legal concept which means serious carelessness. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct one expects from the proverbial "reasonable person"...
with prejudice and claims of fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
and negligent misrepresentation without prejudice.
Communications Decency Act Analysis
Both parties conceded that MySpace is an "interactive computer service" as defined by the CDA, and it is clear MySpace would meet the statutory definition of such a service. Furthermore, the District Court looked to the congressional purpose of the CDA, which is to encourage websites to create forums for people to exhange thoughts and ideas by protecting interactive computer services from potential liability for each message republished by their service. Moreover, the court looked to the Ninth Circuit Court of Appeals holding in Carafano v. Metrosplash.comCarafano v. Metrosplash.com
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 , is an American legal case dealing with the protection provided an internet service provider under the Communications Decency Act United States Code Title 47 section 230...
and the Fourth Circuit Court of Appeals holding in Zeran v. America Online, Inc.
Zeran v. America Online, Inc.
Zeran v. America Online, Inc., 129 F.3d 327 , cert. denied, 524 U.S. 937 , is a case in which the Fourth Circuit Court of Appeals determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act...
to guide them in statutory construction. Ultimately, the court viewed Plaintiffs' claims as directed toward MySpace in its "publishing, editorial, and/or screening capacities." Thus, the court held that Defendants were entitled to immunity under the CDA and therefore dismissed Plaintiffs' negligence and gross negligence claims under Federal Rules of Civil Procedure Rule 12(c).
The District Court stated that the CDA also immunizes "interactive computer services" from liability based on efforts to self regulate material:
- "no provider or user of an interactive computer service shall be held liable on account of -- (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user-considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectable..." .
In reflection of Congress's recognition of the potential liability for the implementation of safety policies creating a disincentive for "interactive computer services" to implement safety features at all, the District Court held that Plaintiffs' claims are barred by the CDA § 230(c)(2)(A).
Duty to Protect Under Texas Law Analysis
The District Court found that under Texas Law, in order to state a claim for negligence or gross negligence, a plaintiff must allege the existence of a duty, a breach of that duty, and the proximate causation of damages resulting from the breach. The court held that a person has "no legal duty to protect another from the criminal acts of a third person or control the conduct of another." . Thus, the court found Plaintiffs had failed to state a claim for negligence or gross negligence because MySpace had no duty to protect Plaintiff Doe from Soli's criminal sexual assault.Fraud and Misrepresentation
The District Court held that Plaintiffs had not plead her fraud and misrepresentation claims with "sufficient particularity", as Plaintiffs' counsel admitted in open court that they no longer wished to pursue those claims.Arguments and Issues on Appeal
Plaintiffs appeals the district court's dismissal of their claims for negligence and gross negligence arguing:- That § 230(c)(1) of the CDA is inapplicable here because their claims do not implicate MySpace as a 'published' protected by the Act
- That MySpace was partially responsible for creating the content of the information that was exchanged between Julie and Solis.
- That § 230(c)(2) does not immunize MySpace's failure to take reasonable steps to ensure minor's safety
- The court should apply the law of premises liability germane to owners of real property to publishers and Internt service providers operating in the virtual world of cyberspace.
Fifth Circuit Court of Appeals Ruling
On May 16, 2008, the Fifth Circuit Court of Appeals affirmed the District Court's ruling that Plaintiffs' claims were barred by the Communications Decency Act, 47 U.S.C. § 230 and Texas common law. Judge Edith Brown ClementEdith Brown Clement
Edith "Joy" Brown Clement is a federal judge on the United States Court of Appeals for the Fifth Circuit.- Background :...
wrote the opinion of the court.
Communication Decency Act Analysis
With respect to Plaintiffs' 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 -- a Third Circuit Court of AppealsUnited States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
case that granted CDA immunity to AOL against a "failure to protect" claim. In the court's view, Plaintiffs' 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. Moreover, the court stated that parties who are complaining that they were harmed by a website's publication of user-generated content have an alternative claim against the third party content-generator.
In response to Plaintiffs' attempt to distinguish their case from Carafano and Zeran the Fifth Circuit reiterated the district courts ruling stating:
- "It is quite obvious the underlying basis for Plaintiffs' claim is that through posting on MySpace, Pete Solis and Julie Doe met and exchanged personal information which eventually led to an in-person meeting and sexual assault... If MySpace had not published communications between Doe and Solis... they never would have met and the sexual assault never would have occurred. No matter how artfully Plaintiffs seek to plead their claims, the court views Plaintiffs' claims as directed toward MySpace in its publishing, editorial, and/or screening capacities."
With regard to the argument that MySpace partially created Julie and Solis’s posted content, the court ruled that Plaintiffs were barred from making this argument on appeal because they had not raised the issue earlier to the District Court. The court specifically noted that the trial record showed Plaintiffs 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…”
Finally, the Court rejected Plaintiffs' argument that the CDA should not apply to MySpace because it was partially responsible for creating the information exchange. The court points to the fact that Plaintiffs' counsel neglected to present this argument to the district court and thus are barred from making the aforementioned argument on appeal. Ultimately, The court concluded that Plaintiff's negligence and gross negligence claims were barred by the CDA, and thus the court stated "there is no need to apply § 230(c)(2) or to access the viability" of Plaintiffs' claim under Texas common law in the absence of the CDA.
In November 2008, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
denied certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
.
Further Reading
Brown, Evan. "A Look Back at Doe v. MySpace." Weblog post. Internet Cases. 10 June 2008. Web. 31 Oct. 2010."Doe v. Myspace, Inc. Et Al." Justia Dockets & Filings. Web. 31 Oct. 2010.
Goldman, Eric. "Concurring Opinions » MySpace Sued for Facilitating Offline Sexual Assaults." Concurring Opinions. 18 Jan. 2007. Web. 01 Nov. 2010.
Goldman, Eric. "Technology & Marketing Law Blog: MySpace Gets 230 Win in Fifth Circuit--Doe v. MySpace." Technology & Marketing Law Blog by Eric Goldman. 17 May 2008. Web. 31 Oct. 2010.
O'Toole, Thomas. "TechLaw: High Court Declines Review of MySpace CDA 230 Case." E-Commerce and Tech Law. 17 Nov. 2008. Web. 01 Nov. 2010.