Designer Skin LLC v. S & L Vitamins, Inc., et al.
Jane Doe, Individually and as Next Friend of Julie Doe, a minor v. Myspace, Inc. and News Corporation
474 F. Supp. 2d 843, Case No. A-06-CA-983-SS (W.D. Texas, February 13, 2007) aff'd., No. 07-50345 (5th Cir., May 16, 2008).
Court dismisses negligence and gross negligence claims asserted against defendant Myspace, Inc. (“Myspace”) arising out of the alleged sexual assault of a minor made possible by her posting of a “user profile” on Myspace.com. As a result of this posting, a male, age 19, made contact with the minor who falsely represented she was 18, obtained her telephone number and arranged a meeting at which she was allegedly sexually assaulted. The Court held Myspace immunized from such claims by application of the Communications Decency Act, 47 U.S.C. Section 230, because, at bottom, plaintiffs’ claims sought to hold Myspace liable as a result of its role in the publication of the minor’s user profile. The Court also held plaintiffs’ claims barred by Section 230(c)(2)(A), as they sought to hold Myspace liable for its purported negligence in failing to verify the minor’s age. The minor was 13 at the time she posted a user profile in which she falsely claimed to be 18. Myspace does not permit those below 14 to use its services.
The Court also dismissed plaintiffs’ negligence claims, which sought to hold Myspace liable for its purported negligent failure to institute measures designed to protect minors from sexual predators and to take appropriate steps to verify their age. The Court held that, like Federal Express and other common carriers, Myspace owed no duty to the minor which could form the basis of such a claim.
Finally, the Court dismissed plaintiffs’ fraud and negligent misrepresentation claims as a result of plaintiffs’ failure to plead such claims with the requisite particularity.
Myspace is a social networking site. Users are permitted to create profiles, which contain information about themselves, including photos. Once a user has created a profile, he can extend “friend invitations” to other members, who can then view the profile and communicate with the user.
A then 13 year old minor, Julie Doe, created a Myspace user profile in which she falsely claimed to be 18. Julie Doe was contacted by a 19 year old male, who obtained her telephone number and arranged a meeting, at which he purportedly sexually assaulted Julie Doe. This individual was subsequently arrested and indicted for sexual assault.
Seeking redress, plaintiff, on behalf of Julie Doe, commenced this suit, asserting clams of negligence, gross negligence, fraud and negligent misrepresentation. Plaintiffs’ claims were premised on the failure of Myspace to take adequate steps to verify the age of participants, or to protect minors such as Julie Doe who used its services from sexual predators.
On Myspace’s motion, the Court dismissed plaintiffs’ negligence claims, holding them barred by application of the Communications Decency Act, 47 U.S.C. Section 230. The Court held that plaintiffs sought to hold Myspace liable as a result of its role in the publication of Julie Doe’s user profile, a profile Myspace admittedly did not create. Such a claim was expressly barred by application of the CDA. In reaching this result, the Court rejected plaintiffs’ argument that their suit sought not to hold Myspace liable for the publication of this profile, but rather, for its failure to institute appropriate safety measures to keep minors off its site, and to protect them from sexual predators. Said the Court:
The Court further held that, to the extent the claim rested on plaintiffs’ contention that MySpace failed to take adequate steps to verify Julie Doe’s age, it was barred by Section 230(c)(2)(A) of the CDA, which provides that “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 objectionable …”.
The Court also dismissed plaintiffs’ negligence claims, holding that Myspace owed plaintiffs no duty to institute measures to protect minors from sexual predators, or to verify the age of those who use the site. Absent such a duty, plaintiffs could not pursue their negligence claims. In reaching this result, the Court rejected plaintiffs’ argument that, like landowners, Myspace had a duty to protect its users from foreseeable criminal acts of third parties committed on its premises. Because other sexual predators had sexually assaulted Myspace users, argued the plaintiffs, Myspace had a duty to institute appropriate protective measures. The Court instead analogized Myspace to common carriers, which bear no liability for their failure to detect harm that may be caused by information and other things they transport. Said the Court:
Finally, the Court dismissed plaintiffs’ fraud and negligent misrepresentation claims for failure to plead them with the requisite particularity.