No, this isn't about the Megan Meier suicide debacle. It's about another, older but equally tragic episode. The family of a fifteen-year-old girl who committed suicide in 2006 after a sexual relationship with a twenty-seven-year-old man she met on MySpace is suing the popular social networking site for negligence and violation of products liability law (i.e., for creating and distributing a defective product). The crux of the complaint is that MySpace negligently "provided an unprotected social networking site absent of any legitimate means of preventing contact bretween sexual predators and minors." Compl. ¶ 1. The family filed suit against MySpace in state court in Texas in December 2007, also naming as a defendant Kiley Ryan Bowers, the man who allegedly had a relationship with the deceased. Wired has a good article with more details.
From a legal perspective, this case is almost indistinguishable from a previous case filed against MySpace in federal court in Texas. In that case, the court held that CDA 230 barred legal claims based on MySpace's "negligent failure to take reasonable safety measures to keep young children off of its site." Doe v. MySpace, 474 F.Supp.2d 843, 849-50 (W.D. Tex. 2007) (Doe v. MySpace I). At first blush, this might seem like an odd result because CDA 230 primarily applies to publication torts -- it says that no provider of an interactive computer service "shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Needless to say, negligence is not commonly understood as a publication claim.
The Doe v. MySpace I court held that the plaintiff's claims, while styled as negligence claims, were essentially based on publication of third-party content:
It is quite obvious that the underlying basis of Plaintiffs' claims is that, through postings on MySpace, [the adult male] and the [minor female] met and exchanged personal information which eventually led to an in-person meeting and the sexual assault of [the minor female]. If MySpace had not published communications between [them], including personal contact information, Plaintiffs assert they never would have met and the sexual assault never would have occurred. No matter how arfully Plaintiffs seek to plead their claims, the Court views [them] as directed toward MySpace in its publishing, editorial, and/or screening capacities. Therefore . . . Defendants are entitled to immunity under the CDA . . . .
Doe v. MySpace I, 474 F. Supp. 2d at 849-50. It could be hard for the plaintiffs in the new case (Doe v. MySpace II) to overcome this reasoning. But the plaintiffs' attorney, who incidentally was also one of the plaintiff's attorneys in Doe v. MySpace I, is doing his best to make this case look different. In anticipation of the CDA 230 issue, the complaint states:
Plaintiffs bring no claims that involve publishing, altering, or withdrawing content provided by third parties. Plaintiffs simply complain of MySpace's failure to do even the bare minimum to reduce the threat of these attacks: implement reasonable and practicable safety measures that would protect MySpace's most vulnerable users from a terrible threat that MySpace knew was present.
Compl. ¶ 11. It's hard to see how this legal argumentation in the complaint can distinghish the new lawsuit from Doe v. MySpace I. In other paragraphs, the complaint alleges that Bowers "communicated with [the minor female] and ultimately orchestrated his sexual assault on her through the MySpace.com website" and "continued to contact her through MySpace.com until she ultimately committed suicide . . . due to extreme depression as a result of the relationship fostered by MySpace." Compl. ¶ 8. This looks a whole lot like a claim "directed toward MySpace in its publishing, editorial, and/or screening capacities."
Perhaps the plaintiffs' attorney was hoping that a state court, as opposed to a federal court, would be more amenable to his argument. He is probably not pleased that Bowers has filed a motion to remove the case to federal court.
This will be an interesting case to watch because its fact patterns raises important questions about just how far CDA 230 can go in insulating websites from liability and whether pushing those limits jives with congressional intent and/or good policy judgment.
