Section 230 Saves…

. . . as did a litigant’s own claims, which were dismissed on the merits. But I figured the alliteration made for the more compelling title.

Regardless of how you might feel about its services, you’d no doubt agree that makes no attempt to be subtle (homepage banner exclaims “MILLIONS OF MEMBERS LOOKING FOR SEX”). According to the ruling discussed in this post, (“SexSearch”) offers “an online adult dating service which encourages its members to meet and engage in sexual encounters . . . [m]embers are permitted to provide information for a profile, which consists of a list of responses to specific questions posed by the website. Members may also upload photographs and video content to their profile.” Enter Mr. Doe, a/k/a plaintiff.

Shortly after becoming a “gold member” in October 2005, Mr. Doe found one Ms. Jane Roe’s profile, which apparently indicated that Ms. Roe was born 6/15/87, was 18 years old, and included “an authentic image of Jane Roe at her then-current age.” Doe and Roe began chatting online via SexSearch, and “the two eventually decided to schedule a sexual encounter to take place at Jane Roe’s home on November 15, 2005. The meeting went as planned, and Plaintiff and Jane Roe engaged in consensual sexual relations.” But, as you no doubt already guessed, Ms. Roe wasn’t exactly 18 – she was fourteen years old. Mr. Doe was later arrested and charged with three felony counts of engaging in unlawful sexual conduct with a minor. I have no information on the current status of those charges, or whether Ms. Roe and/or a guardian has filed a civil action.

However Mr. Doe, apparently with the assistance of counsel, concluded a civil action against the website was in order. His suit, filed in the Northern District of Ohio, was dismissed earlier this week by District Judge Zouhary, who granted the defendants’ Rule 12(b)(6) motion to dismiss. The court employed Section 230 immunity in connection with the majority of plaintiff’s claims, and its ruling is summarized here.

Mr. Doe sued the seventeen purported owners of SexSearch, asserting they had warranted that “all persons within this site are 18+.” He alleged fourteen claims against defendants, which “essentially boil down to either (a) Defendants failed to discover Jane Roe lied about her age to join the website, or (b) [SexSearch’s] contract terms are unconscionable.”

Considering the applicability of Section 230, the court quickly concluded that SexSearch is an interactive computer service, and “[w]hile SexSearch may have reserved the right to modify the content of profiles in general, Plaintiff does not allege SexSearch specifically modified Jane Roe’s profile, and is thus not an information content provider in this case.” Apparently viewing the website’s functionality as more like (see Carafano case) than (see Fair Housing Council case), the court added that “the mere fact SexSearch provided the questionnaire Jane Doe answered falsely is not enough to consider SexSearch the developer of the false profile.”

Lastly, the court considered whether Doe’s claims “would involve treating the website ‘as the publisher’ of the false information.” The court first determined that it was not precluded from “extending [Section 230 immunity] to Plaintiff’s non-tort claims.” [Note, however, that the legislative history the court alluded to in support of this determination appeared to have more to do with subsection (c)(2) that (c)(1).] And as for whether some of plaintiff’s claims would treat SexSearch as a publisher, the Court stated that

[t]he underlying basis for Plaintiff’s claim is that if SexSearch had never published Jane Roe’s profile, Plaintiff and Jane Roe never would have met, and the sexual encounter never would have taken place. Plaintiff thus attempts to hold SexSearch liable for “decisions relating to the monitoring, screening, and deletion of content from its network-actions quintessentially related to a publisher’s role.” Section 230 specifically proscribes liability in such circumstances.

Thus given “they all hinge on SexSearch’s failure to remove Jane Roe’s profile, or their failure to prevent John Doe from communicating with her,” Section 230 immunized defendants from the following counts: breach of contract, fraud, negligent infliction of emotional distress, negligent misrepresentation, breach of warranty, certain violations of the Ohio Consumer Sales Practices Act (2 counts), and failure to warn. Separately, the court found that each and every claim failed on the merits, including those claims that were not subject to Section 230 immunity (three claims that alleged “Defendants incorporated unconscionable clauses into the Terms and Conditions” in violation of the OCSPA, and three common-law claims based on alleged unconscionability of the Terms and Conditions).


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