By CLJ Staff (May 17, 2008) - In 2005, thirteen-year-old Julie Doe lied about her age and created a MySpace profile claiming she was eighteen. This action allowed her to circumvent all safety features of the web site and resulted in her profile being made public. Nineteen-year-old Pete Solis ("Solis") was able to initiate contact with Julie in April 2006 when she was fourteen. The two communicated offline on several occasions after Julie provided her telephone number. They met in person in May 2006, and, at this meeting, Solis sexually assaulted Julie.
The Does sued MySpace alleging that the site had failed to implement basic safety measures to prevent sexual predators from communicating with minors on its web site. A federal district court in Texas dismissed the claims and this dismissal now has been affirmed by the Fifth Circuit.
The district court in Texas dismissed with prejudice the Does' claims for
negligence and gross negligence, finding that the claims were barred by the the Communications Decency Act (CDA). The CDA provides immunity to web-based service providers for all claims stemming from their publication of information created by third parties. On appeal, the Does argued that the CDA was inapplicable because their claims did not implicate MySpace as a "publisher" protected by the act and because MySpace not only published but was also partially responsible for creating the content of the information that was exchanged between Julie and Solis. They also argued that the CDA does not immunize MySpace's failure to take reasonable steps to ensure a minors' safety.
On appeal, Fifth Circuit reviewed the case law relating to CDA immunity and found that courts have construed it broadly in all cases arising from the publication of user-generated content. Rather than take this precedent on directly, the Does attempted to do an end-run around it by characterizing their claims in terms of traditional common law duties rather than as ones relating to cyber-offenses. The Fifth Circuit found these arguments to be disingenuous and similar to those rejected by other courts. The court noted that the Doe's "allegations are merely another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace's role as a publisher of online third-party-generated content."
The Fifth Circuit also rejected the Doe's argument that MySpace is not
immune under the CDA because it partially created the content at issue.
In this regard, the Does alleged that the site facilitates its members' creation of personal profiles and chooses the information they will share with the public through an online questionnaire. The court found that nothing in the record supported this claim and that in the district court, the Does admitted that Julie had created the content and disclosed the personal information that ultimately led to the assault.
In reaching its ruling, the court exhibited little if any sympathy for the Does and those similarly situated. To the contrary, the court went out of its way to quote this exchange from the district court record, even though it had little direct bearing on the issues on appeal:
THE COURT: "I want to get this straight. You have a 13-
year-old girl who lies, disobeys all of the instructions, later on
disobeys the warning not to give personal information, obviously,[and] does not communicate with the parent. More important, the
parent does not exercise the parental control over the minor. The
minor gets sexually abused, and you want somebody else to pay for
it? This is the lawsuit that you filed?"
COUNSEL FOR THE DOES: "Yes, your honor."
MySpace was represented on appeal Vinson & Elkins. Partner Harry M. Reasoner of Houston argued the case in the Fifth Circuit.
The U.S. Court of Appeals for the Fifth Circuit is one of 13 federal circuit courts which occupy an intermediate level between the federal district courts and the U.S. Supreme Court. The Fifth Circuit is headquartered in New Orleans and hears appeals from the district courts located within Texas, Louisiana and Mississippi.
