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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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:


Plaintiffs argue the CDA does not bar their claims against MySpace because their claims are not directed toward MySpace in its capacity as a publisher.  Plaintiffs argue this suit is based on MySpace’s negligent failure to take reasonable safety measures to keep young children off of its site and not based on MySpace’s editorial acts.  The Court, however, finds this artful pleading to be disingenuous.  It is quite obvious the underlying basis of Plaintiff’s claims is that, through postings on MySpace, [a male] and Julie Doe met and exchanged personal information which eventually led to an in-person meeting and the sexual assault of Julie Doe.  If MySpace had not published communications between Julie Doe and [the male], including personal contact information, Plaintiffs assert 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.  Therefore, in accordance with the cases cited above, Defendants are entitled to immunity under the CDA, and the Court dismisses Plaintiffs’ negligence and gross negligence claims with prejudice …

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:

[T]he Court is unconvinced that any exception to the general no duty rule applies to Myspace here.  Plaintiffs allege Myspace can be liable under a negligence standard when a minor is harmed after wrongfully stating her age, communicating with an adult, and publishing her personal information.  To impose a duty under these circumstances for Myspace to confirm or determine the age of each applicant, with liability resulting from negligence in performing or not performing that duty, would of course stop Myspace’s business in its tracks and close this avenue of communication, which Congress in its wisdom has decided to protect.  The Court declines to extend premises liability cases to the internet context particularly where, as here, the Defendant provided its service to users for free.  Plaintiff has cited no case law indicating that the duty of a premises owner should extend to a website as a “virtual premises.”

Finally, the Court dismissed plaintiffs’ fraud and negligent misrepresentation claims for failure to plead them with the requisite particularity.

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