A recent California court ruling reemphasizes the breadth of protection that Web site operators enjoy under the federal Communications Decency Act – even where those aggrieved by the site’s editorial content claim that they are not arguing over content at all.
In Doe II v. MySpace Inc., No. B205643 (Calif. App. June 30, 2009), the California Court of Appeals agreed that Section 230 of the CDA precluded all claims against MySpace by the parents of five teenagers who were sexually assaulted by men they communicated with through the popular social networking site.
The CDA immunizes providers and users of interactive computer services from claims arising out of information created by third parties. Since Section 230 was enacted in 1996, Web site operators – including news organizations that allow reader comments – have been highly successful in invoking the shield to escape liability for harmful material posted on their comment boards.
Because of that record of success, attorneys for the victims’ families in the Doe II case tried mightily to argue that their claim was not about the content posted to MySpace at all – it was, they argued, about MySpace’s failure to take precautions to prevent sexual predators from creating accounts to lure their victims. Section 230, the families argued, applies only if the words on the screen are alleged to be hurtful, such as in a libel case. In this case, the words merely facilitated the ultimate harm.
In a 3-0 ruling written by Judge Patricia A. Bigelow, the court of appeals disagreed: “The real question … is whether [the families] seek to hold MySpace liable for failing to exercise a publisher’s traditional editorial functions, namely deciding whether to publish certain material or not. Because they do, section 230 immunizes MySpace from liability.”
This aspect of the decision is not brand-new. The Fifth Circuit U.S. Court of Appeals came to the same legal conclusion in a very factually similar case against MySpace last year, to which the judges in Doe II repeatedly refer.
The California ruling goes a bit further, however, and shoots down an argument that the Fifth Circuit did not directly confront: that MySpace can be liable as a “co-creator” of the rapists’ and victims’ profiles because it maintains a biographical questionnaire to invite users to share specific pieces of information.
While it is possible in extreme cases for a Web site operator to cross the line and become a co-creator of an outsider’s submission, the California court didn’t think this was one of those cases. The membership questionnaire to sign up for MySpace does not require the user to submit anything that is against the law, the court noted, nor must a user publicly share her biographical data as a precondition for entering the site.
The Doe II ruling reinforces that courts view Section 230 as a near-absolute barrier – even under unsympathetic factual circumstances – and that Web sites will not be liable for whom they let in the door any more than they are liable for what their guests leave behind.