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January 18, 2007
MySpace Sued for Facilitating Offline Sexual Assaults
AP reports that four families have sued MySpace because their daughters were sexually assaulted (offline) by other MySpace members. This isn't the first time MySpace has been sued on this front; last year, MySpace was sued in Texas state court for the same issue in Doe v. MySpace.
These lawsuits are obvious losers for two independent reasons. First, there's a major causation problem. Can MySpace be deemed, as a legal matter, a contributing factor to an intentional tort committed outside its "four walls"? This strikes me as a major stretch of causation doctrines.
Even if you don't buy that, then I'm 100% confident these attempts to hold MySpace liable for other people's behavior will fail due to 47 USC 230. 47 USC 230 has routinely insulated websites for liability for torts committed outside their network. This was the central issue in the Fourth Circuit's seminal Zeran v. AOL case, 129 F.3d 327 (4th Cir. Nov. 12, 1997), where the court insulated AOL for the offline harassment sparked by online postings. For other examples of websites avoiding liability for offline conduct, see, e.g., Doe v. America Online, 783 So. 2d 1010 (Fla. 2001) (AOL not liable to harmed child for child porn generated off AOL and distributed through it); Doe v. Bates, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) (same basic case as Doe v. AOL); Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006) (information republisher not liable for offline harassing behavior made using published data); Barnes v. Yahoo, Inc., 2005 WL 3005602 (D. Or. Nov. 7, 2005) (Yahoo not liable for offline harassments made in response to bogus profile submitted by angry ex-boyfriend).
Given the obviously futile nature of this lawsuit, this lawsuit may be more about publicity than about seeking justice. Despite this, these lawsuits may nevertheless exacerbate two trends, both of which are not necessarily positive.
First, legislators cannot resist the meme of protecting kids online, and this lawsuit will give legislators another incentive to think that they should regulate social networking sites to protect kids. See, for example, Sen. McCain's proposed "Stop the Online Exploitation of Our Children Act." (How could anyone ever oppose a law with a title like that???) However, such regulations run into difficult definitional issues (what is a "social networking site"?) and, if poorly drafted (as Congress tends to do with Internet regulation), could jeopardize lots of legitimate activities and conversations.
Second, this lawsuit will also encourage Congress to target sexual offenders for further restrictions of their online behavior, like McCain's Stop the Online Exploitation of Our Children Act and like the proposed federal sex offender email registry as a way to blacklist them online (see a similar effort in Virginia). Sexual offenders have become the new pariah in our society--they are a tiny percent of the population and, based on the nature of their offenses, shunned by majority interests (indeed, it is politically incorrect to do anything but shun them). As a result, there is no meaningful counterbalance to any majority-led political efforts to strip them of rights. To the extent that depriving them of rights online could improve the safety of children, I'm all for it. However, I have yet to see any social science explaining what online restrictions of sexual offender behavior actually supports this goal. Without any scientific support, regulatory efforts are typically more about grandstanding by attacking unpopular minorities than about improving our safety.
I want to be clear--I worry a lot about how I can protect my children online, and I haven't figured out how to best do that. This kind of stuff keeps me up at nights because of my heavy responsibilities as a parent. At the same time, I remain concerned that legal intervention to supplement my efforts will not help me execute my duties as a parent, but they will nevertheless come at a significant cost by curtailing otherwise robust and socially enriching communication environments.
Posted by Eric Goldman at January 18, 2007 03:35 PM
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Comments
I agree with you that this case sounds like a loser on the causation issue. I'm less sure about the Section 230 defense. The post-Zeran cases you cite all involve, as you describe them, online communications that caused harmful offline consequences. In each case, the suit would have tried to hold the provider liable on the theory that the communications were wrongful. Those theories are barred by Section 230. As you describe the latest cases, however, the communications themselves weren't tortious. The gravamen of the complaints isn't that someone made a harmful communication for which the provider should be liable as a speaker. Instead, it sounds more as though communications not wrongful in themselves led to wrongful offline acts, so that one doesn't need to treat the provider as a publisher in order to find liability. Your description of the previous 230 cases seems to leave this distinction open; perhaps there's more to them than you cited in your parentheticals?
Posted by: James Grimmelmann at January 18, 2007 03:52 PM
A myspace blog said that myspace phishing is on the rise. and that was something that got me really scared. my daughter and i are into myspace. I have lots of old-time friends I haven't talked to, and it's nice to get back to the time where we can discuss business and our families, but I'm worried about my daughter. she's only 16, and though we've advised her to be careful, still, it isn't an assurance that she'll never fall for sexual predators. Maybe I'll just have to block Myspace at home for a while, and inform the school to do it as well.
Posted by: myspaceparent at January 18, 2007 10:32 PM
>Sexual offenders have become the new pariah in our society. . . there is no meaningful counterbalance to any majority-led political efforts to strip them of rights.
We have all seen this happening, but no one else has been willing to say anything about it.
But Brian Dickerson of the Detroit Free Press has written numerous columns about a related phenomenon: the misuse of sex offender registries to target non-predators for offenses such as skinny-dipping, 16-year-olds having sex with 15-year-olds, etc.
Posted by: yclipse at January 19, 2007 07:53 AM
James, I understand the distinction you're making, and others (like John Ottaviani, who guest-blogged about the Doe v. MySpace case on my other blog) might agree with you.
From my perspective, I don't think the distinction bears out in practice. In a number of the cited cases, the cause of action against the website was negligence or intentional infliction of emotional distress *due to the offline behavior.* According to the AP, the plaintiffs in this case claim "negligence, recklessness, fraud and negligent misrepresentation by the companies." So I think that 230 should reach all of those claims even if related to offline conduct.
Alternatively, if the plaintiffs don't base their claims on the online content, I don't see how the plaintiffs can establish a prima facie case against MySpace because it's no longer in the causation chain (any more than the phone company would be in the causation chain for enabling a phone call between the parties).
Eric.
Posted by: Eric Goldman at January 19, 2007 01:27 PM
As Eric noted, I side with James on this one on the Section 230 issue. I don't see Section 230 applying to claims that MySpace's negilgent failure to do something or its own misrepresentations about the safety of its site are the cause of the unfortunate assaults. As I blogged on Eric's site last Fall about the Doe v. MySpace case, I also have a hard time seeing that there is a legal duty on MySpace to take steps to protect millions of unseen users from the actions in the physical world of millions of unknown bad people. I do agree with Eric about the causation issue. So, even though the plaintiffs have an advantage in state court, they have a long row to hoe. News Corp. and MySpace should win in summary judgment.
Posted by: John Ottaviani at January 19, 2007 03:33 PM
