Fifth Circuit issues its first Section 230 opinion

Last month the Fifth Circuit issued its first (to my knowledge) ruling that turned on Section 230. Affirming the lower court in Doe v. MySpace Inc., Circuit Judge Clement, writing on behalf of herself and Judges Garwood and Elrod, ruled that the statute protected MySpace from claims that it was negligent for not “instit[uting] and enforc[ing] appropriate security measures and policies that would substantially decrease the likelihood of danger and harm that MySpace posed to” the minor-plaintiff.

The minor had lied about her age, enabling her to create a public MySpace profile. A nineteen year old male MySpace user (“Pete”) subsequently discovered her profile and initiated contact with her. The minor eventually shared her phone number with Pete and agreed to meet him in person, at which time he sexually assaulted her. Plaintiffs believe that had MySpace been utilizing age verification software, the assault never would have occurred.

The Court ruled that the plaintiffs’ negligence claims are barred by Section 230,

notwithstanding [plaintiffs’] assertion that they only seek to hold MySpace liable for its failure to implement measures that would have prevented [the minor] from communicating with [her assailant]. Their 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. . . . [plaintiffs’] negligence and gross negligence claims are barred by the CDA, which prohibits claims against Web-based interactive computer services based on their publication of third-party content.

Read here about MySpace’s commitment earlier this year to forty-nine state AGs to make the site safer for minors.


3 thoughts on “Fifth Circuit issues its first Section 230 opinion

  1. […] The complaint does, however, allege a breach of contract action.  If a close reading of Facebook’s policies, which the complaint does not do here and I have not done, reveals some promise to remove such profiles, the plaintiff may have a promissory estoppel claim against Facebook.  (See, e.g., Barnes v. Yahoo!, Inc, although I’m unaware of any Fifth Circuit cases which have followed the Ninth Circuit’s rationale in Barnes — Fifth Circuit CDA 230 cases appear to be few and far between.) […]

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