Last Friday, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of negligence claims brought against MySpace by the family of a teenage girl who used the popular social networking site to communicate with and arrange to meet a nineteen-year-0ld boy who sexually assaulted her. The district court held that section 230 of the Communications Decency Act ("CDA 230") barred the teen's claims based on MySpace's alleged failure to take basic safety measures to prevent sexual predators from communicating with minors on the site. See Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007). Agreeing with the district court, the Court of Appeals concluded that the plaintiffs' claims, while ostensibly focusing on website safety, were essentially based on publication of third-party content and were thus defeated by CDA 230:

Their claims are barred by the CDA, notwithstanding their assertion that they only seek to hold MySpace liable for its failure to implement measures that would have prevented Julie Doe from communicating with Solis. 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.

Eric Goldman says that the Fifth Circuit "clearly got it right." Now I almost never disagree with Professor Goldman, especially when it comes to a defense win on CDA 230 grounds, but one could argue that this case takes CDA 230 too far. As Professor John Palfrey pointed out recently in an internal Berkman Center email exchange, MySpace is a powerful corporate intermediary that has broad ability to control the networked public space it makes available to minors and adults alike, and it doesn't necessarily serve any of the congressional objectives behind CDA 230 to automatically let the company off the hook under the circumstances. That said, I understand the opposing view that recognizing an exception for negligence or failure-to-protect-type claims would give creative plaintiffs the opportunity to plead around CDA 230, and that it would be difficult to draw the line between a genuine safety claim and a speech-masquerading-as-safety claim. But, at least to my mind, this case falls on the genuine side of the line.

For background on the case and links to court documents, see our database entry, Doe v. MySpace.