Doe v. Myspace, Inc.

Decision Date13 February 2007
Docket NumberNo. A-06-CA-983-SS.,A-06-CA-983-SS.
Citation474 F.Supp.2d 843
PartiesJane DOE, Individually and as Next Friend of Julie Doe, a minor, Plaintiffs, v. MYSPACE, INC., and News Corporation, Defendants.
CourtU.S. District Court — Western District of Texas

Adam Jacob Loewy, Carl R. Barry, Barry & Loewy, Austin, TX, Douglas Holden Wigdor, Scott Browning Gilly, Thompson Wigdor and Gilly, New York City, Jason Aron Itkin, Kurt B. Arnold, Micajah "Caj" Boatright, Nicholas G. Spiliotis, Arnold & Itkin, LLP, Houston, TX, for Plaintiffs.

Christopher V. Popov, Michael Dennis Marin, Susan Denmon Gusky, Vinson & Elkins, Austin, TX, Clifford Louis Thau, Hilary Lovett Preston, Ronald Leslie Oran, Jr., Vinson & Elkins LLP, New York City, for Defendants.

ORDER

SPARKS, District Judge.

BE IT REMEMBERED on the 1st day of February 2007, the Court held a hearing in the above-styled cause, to consider Defendants MySpace, Inc. and News Corporation's ("MySpace")1 Motion to Dismiss [# 6, 7, 15, 16, 36], Plaintiffs' responses thereto [# 13, 14, 38], and Defendants' reply thereto [# 20]. Having considered the motion, the responses, the replies, the arguments of counsel at the hearing, the relevant case law, and the case file as a whole, the Court now enters the following opinion and orders.

Background

MySpace.com is the most visited web site in the United States, and it is owned by Defendant MySpace, Inc.2 MySpace.com is a "social networking web site" that allows its members to create online "profiles," which are individual web pages on which members post photographs, videos, and information about their lives and interests. The idea of online social networking is that members will use their online profiles to become part of an online community of people with common interests. Once a member has created a profile, she can extend "friend invitations" to other members and communicate with her friends over the MySpace.com platform via e-mail, instant messaging, or blogs.

MySpace.com is free to users who agree to the MySpace Terms of Use Agreement. Every new member of MySpace.com, including Julie Doe, agrees to be bound by the MySpace.com Terms of Service, by clicking a check box on the website. MySpace's Terms of Service provide that MySpace cannot verify the age or identity of MySpace.com members and cautions members not to provide "telephone numbers, street addresses, last names, URLs or email addresses" to other members.

According to Plaintiffs' Verified Complaint, Julie Doe created a MySpace profile when she was 13 years old. At the hearing, Plaintiffs' counsel admitted that Julie Doe lied about her age and represented that she was 18 years old when she joined MySpace.com.3 Plaintiffs allege Pete Solis, a nineteen-year-old, initiated contact with Julie Doe, then fourteen years old, through MySpace.com on April 6, 2006. Subsequently, Julie Doe provided Pete Solis with her telephone number and the two communicated over the phone for several weeks. At some point, Julie Doe and Pete Solis arranged to meet for a date on May 12, 2006. Plaintiffs allege that during that meeting Pete Solis sexually assaulted Julie Doe. On May 13, 2006, Jane Doe, Julie's mother, called the Austin Police Department to report the sexual assault of her daughter. Pete Solis was subsequently arrested and indicted by the Travis County District Attorney's Office for Sexual Assault, a second degree felony.

This case was filed in Bronx County, New York, on September 26, 2006, and subsequently removed to the United States District Court for the Southern District of New York on September 29, 2006. The Honorable Miriam Goldman Cedarbaum of the United States District Court for the Southern District of New York transferred the case to this Court, pursuant to 28 U.S.C. § 1404(a), on December 1, 2006. Plaintiffs' Verified Complaint, the live pleading in this case filed in Bronx County, New York, asserts the following causes of action against Defendants: negligence, gross negligence, fraud, and negligent misrepresentation.

I. Defendants' Motion to Dismiss

MySpace moves to dismiss this case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) and 9(b). Defendants assert they are immune from this suit under the Communications Decency Act of 1996. Defendants also assert Plaintiffs' negligence claims fail under the common law and Plaintiffs' fraud and negligent misrepresentation claims do not satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b).

A. Communications Decency Act of 1996

The Communications Decency Act of 1996, 47 U.S.C. § 230 (the "CDA" or the "Act"), states that "[n]o provider or user 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). Neither party contests that MySpace is an "interactive computer service" as defined by the CDA, and it is clear that MySpace meets the statutory definition of such a service. See 47 U.S.C. § 230(f)(2). The term "information content provider" means "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3). It is also clear that both Julie Doe and Pete Solis qualify as "information content providers" with respect to their communications through MySpace.

In crafting Section 230, Congress made the following findings:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

47 U.S.C. § 230(a).

The policy underlying the CDA is the promotion of "the continued development of the Internet and other interactive computer services...." 47 U.S.C. § 230(b)(1). To ensure that web site operators and other interactive computer services would not be crippled by lawsuits arising out of third-party communications, the Act provides interactive computer services with immunity. See Dimeo v. Max, 433 F.Supp.2d 523, 528 (E.D.Pa.2006) ("The provision `precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore bars `lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content.'") (quoting Green v. America Online, 318 F.3d 465, 471 (3d Cir.2003); Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). The CDA thus encourages web sites and other "interactive computer services" to create forums for people to exchange their thoughts and ideas by protecting web sites and interactive computer services from potential liability for each message republished by their services. See Carafano v. Metrosplash.com., Inc., 339 F.3d 1119, 1122-24 (9th Cir.2003); Zeran, 129 F.3d at 330-31.

Several courts have construed the CDA to date. In Carafano, a case involving false online personal ad listings, which led to Christine Carafano's receipt of sexually explicit phone calls, letters, and hand-delivered notes, the Ninth Circuit Court of Appeals held that the CDA granted the interactive service provider Matchmaker.com full immunity where a third party willingly provided the essential published content. 339 F.3d at 1124. The Ninth Circuit explained the policy underlying the CDA as follows:

The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.

Id. at 1124 (quoting Zeran, 129 F.3d at 330-31).

One of the most important and oft-cited cases to date is Zeran v. America Online, Inc. In Zeran, the victim of a vicious prank sued America Online, Inc. ("AOL") for failing to remove a false advertisement offering t-shirts featuring tasteless slogans related to the 1995 Oklahoma City bombing and instructing interested buyers to call the plaintiff to place an order. 129 F.3d at 329. After receiving death threats from people who were outraged by the ad, Zeran learned of the prank and demanded that AOL remove the ad from its bulletin board and post a retraction. Id. AOL failed to remove the original ad, and the unidentified poster also posted several more ads listing the plaintiff's phone number. Id. A local radio station learned of the ads and encouraged its listeners to harass Zeran. Id. The volume and intensity of the threats became so severe that local police guarded Zeran's home to protect his safety. Id.

Zeran sued AOL for negligence because it failed to remove the ad after specific notice of its falsity and allowed the third party to post additional ads after Zeran had put AOL on notice of his harassment...

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