Doe v. Myspace, Inc., 07-50345.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation528 F.3d 413
Docket NumberNo. 07-50345.,07-50345.
PartiesJane DOE, Individually and as next friend of Julie Doe, a minor, Plaintiff-Appellant, v. MYSPACE, INC.; News Corporation, Defendants-Appellees.
Decision Date16 May 2008

Micajah Boatright, Kurt B. Arnold, Jason Aron Itkin, Arnold & Itkin, Houston, TX, Gregory Scott Coleman (argued), Marc S. Tabolsky, Richard Bernard Farrer, Yetter & Warden LLP, Austin, TX, for Plaintiff-Appellant.

Michael D. Marin, Matthew Brian Ploeger, Christopher V. Popov, Vinson & Elkins, Austin, TX, Thomas S. Leatherbury, Vinson & Elkins, Dallas, TX, Harry M. Reasoner (argued), Vinson & Elkins, Houston, TX, Clifford Thau, Vinson & Elkins, New York City, for Defendants-Appellees.

Patrick J. Carome, WilmerHale, Washington, DC, for Internet Commerce Coalition, U.S. Internet Service Provider Ass'n, Computer & Communications Industry Ass'n, Information Technology Ass'n of America, National Cable & Telecommunications Ass'n, Netcoalition, CTIA-The Wireless Ass'n and Center for Democracy and Technology, Amici Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, CLEMENT and ELROD, Circuit Judges.


Jane and Julie Doe ("the Does") appeal the district court's dismissal of their claims for negligence and gross negligence, and its finding that the claims were barred by the Communications Decency Act ("CDA"), 47 U.S.C § 230, and Texas common law. For the following reasons, we affirm the decision of the district court.

I. FACTS AND PROCEEDINGS is a Web-based social network. Online social networking is the practice of using a Web site or other interactive computer service to expand one's business or social network. Social networking on begins with a member's creation of an online profile that serves as a medium for personal expression, and can contain such items as photographs, videos, and other information about the member that he or she chooses to share with other users. Members have complete discretion regarding the amount and type of information that is included in a personal profile. Members over the age of sixteen can choose the degree of privacy they desire regarding their profile; that is, they determine who among the membership is allowed to view their profile. Once a profile has been created, the member can use it to extend "invitations" to existing friends who are also users and to communicate with those friends online by linking to their profiles, or using e-mail, instant messaging, and blogs,1 all of which are hosted through the platform.

Members can also meet new people at through user groups focused on common interests such as film, travel, music, or politics. has a browser feature that allows members to search the Web site's membership using criteria such as geographic location or specific interests. members can also become online "friends" with celebrities, musicians, or politicians who have created profiles to publicize their work and to interface with fans and supporters. membership is free to all who agree to the Terms of Use. To establish a profile, users must represent that they are at least fourteen years of age. The profiles of members who are aged fourteen and fifteen are automatically set to "private" by default, in order to limit the amount of personal information that can be seen on the member's profile by users who are not in their existing friends network and to prevent younger teens from being contacted by users they do not know. Although employs a computer program designed to search for clues that underage members have lied about their age to create a profile on the Web site, no current technology is foolproof. All members are cautioned regarding the type of information they release to other users on the Web site, including a specific prohibition against posting personal information such as telephone numbers, street addresses, last names, or e-mail addresses. members are also encouraged to report inaccurate, inappropriate, or obscene material to the Web site's administrators.

In the summer of 2005, at age thirteen, Julie Doe ("Julie") lied about her age, represented that she was eighteen years old, and created a profile on This action allowed her to circumvent all safety features of the Web site and resulted in her profile being made public; nineteen-year-old Pete Solis ("Solis") was able to initiate contact with Julie in April 2006 when she was fourteen. The two communicated offline on several occasions after Julie provided her telephone number. They met in person in May 2006, and, at this meeting, Solis sexually assaulted Julie.2

Julie's mother, Jane Doe, first sued MySpace, Inc., its parent company, News Corporation (collectively "MySpace"), and Solis in a Texas state court on her own behalf and on behalf of her daughter, alleging that MySpace failed to implement basic safety measures to prevent sexual predators from communicating with minors on its Web site. The Does' original petition asserted claims for fraud, negligent misrepresentation, negligence, and gross negligence against MySpace, and claims for sexual assault and intentional infliction of emotional distress against Solis. MySpace answered the petition and filed special exceptions, asserting among other things, that the CDA and Texas common law barred the Does' claims. The Does amended their petition, to which MySpace again specially excepted; thereafter, before any ruling on the special exceptions, the Does filed a motion for nonsuit which the court granted, dismissing the case without prejudice. The Does then refiled in New York state court, asserting the same claims against MySpace, but declining to name Solis as a defendant. MySpace immediately removed that case to the United States District Court for the Southern District of New York and moved simultaneously to transfer venue to the Western District of Texas and to dismiss for failure to state a claim. The district court in New York considered both motions and granted MySpace's motion to transfer venue, but declined to rule on the motion to dismiss, leaving it for the transferee court.

The district court in Texas then held oral argument on February 1, 2007, and decided MySpace's motion to dismiss in a written opinion. The district court construed MySpace's Rule 12(b)(6) motion to dismiss as a Rule 12(c) motion for judgment on the pleadings and considered the Does' most recent complaint, filed on September 25, 2006 in the Bronx County court. In their complaint, the Does alleged:

8. To access the social network, one must create a MySpace account. In order to create a MySpace account, all one has to do is enter a name, email address, gender, country, and date of birth.....

9. Once signed up, each MySpace user is given his or her own personal webpage to create. MySpace users are then prompted to post photographs and personal information on their webpage. Typically, a MySpace user's webpage is viewable by any other MySpace user. Further, any MySpace user can contact any other MySpace user through internal email and/or instant messaging on MySpace.3

. . . .

11. The catalyst behind MySpace's amazing surge in popularity is their underage users demographic. According to MySpace, approximately 22 percent of MySpace visitors are minors, under the age of 18. MySpace actively and passively markets itself to minors.

. . . .

27. In the summer of 2005, 14-year-old Julie created a profile on MySpace. At the time, Julie was only 13-years-old. Despite MySpace's supposed safety precautions and protections prohibiting anyone under 14-years-old from using MySpace, Julie was easily able to create a profile.

. . . .

41. Defendants owed a legal duty to 14-year-old Julie to institute and enforce appropriate security measures and policies that would substantially decrease the likelihood of danger and harm that MySpace posed to her.

The district court in Texas dismissed with prejudice the Does' claims for negligence and gross negligence, finding that the claims were barred by the CDA and Texas common law. The Does voluntarily withdrew their claims for fraud and negligent misrepresentation; therefore, the district court dismissed those claims without prejudice. The Does now appeal the district court's dismissal of their claims for negligence and gross negligence, arguing that § 230(c)(1) of the CDA is inapplicable here because their claims do not implicate MySpace as a "publisher" protected by the Act and because MySpace not only published but was also partially responsible for creating the content of the information that was exchanged between Julie and Solis. Doe next argues that § 230(c)(2) does not immunize MySpace's failure to take reasonable steps to ensure minors' safety. The Does lastly apply the law of premises liability germane to owners of real property to publishers and Internet service providers operating in the virtual world of cyberspace to argue that the district court erred when it did not find a common-law duty to protect Julie. We hold, however, that the Does' claims of negligence are barred by § 230(c)(1) of the CDA.


This Court reviews a district court's grant of judgment on the pleadings under Rule 12(c) de novo. See Brittan Commc'ns Int'l Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir.2002); Hughes v. The Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir.2001). A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6). Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.2004) (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th Cir.2002)). "[T]he central issue is whether, in the light most favorable to the plaintiff, the...

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