Doe v. MySpace, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 16, 2008

No. 07-50345 Charles R. Fulbruge III

Clerk

JANE DOE, Individually and as next friend of Julie Doe, a minor

Plaintiff - Appellant

v.

MYSPACE INC; NEWS CORPORATION

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, CLEMENT and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

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

MySpace.com 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 MySpace.com begins with

a member’s creation of an online profile that serves as a medium for personal

No. 07-50345

expression, and can contain such items as photographs, videos, and other

information about the member that he or she chooses to share with other

MySpace.com 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 MySpace.com 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 MySpace.com 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

MySpace.com platform.

Members can also meet new people at MySpace.com through user groups

focused on common interests such as film, travel, music, or politics.

MySpace.com has a browser feature that allows members to search the Web

site’s membership using criteria such as geographic location or specific interests.

MySpace.com members can also become online “friends” with celebrities,

musicians, or politicians who have created MySpace.com profiles to publicize

their work and to interface with fans and supporters.

MySpace.com 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 MySpace.com users who

are not in their existing friends network and to prevent younger teens from

being contacted by users they do not know. Although MySpace.com employs a

computer program designed to search for clues that underage members have lied

1

The term “blog” is a portmanteau of “Web log” and is a term referring to an online

journal or diary.

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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. MySpace.com 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

MySpace.com. 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

2

Julie’s mother reported the assault to Austin, Texas police, who arrested Solis and

charged him with second-degree sexual assault.

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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

3

Regarding the use of computers and Internet sites, a “prompt” is defined as “a message

or symbol from a computer system to a user, generally appearing on a display screen,

requesting more information or indicating that the system is ready for user instructions.”

Dictionary.com, http://www.dictionary.reference.com/browse/prompt (last visited April 28,

2008).

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No. 07-50345

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.

II. STANDARD OF REVIEW

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No. 07-50345

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

complaint states a valid claim for relief.” Hughes, 278 F.3d at 420 (internal

quotations omitted). Although we must accept the factual allegations in the

pleadings as true, id., a plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,

1974 (2007).

III. DISCUSSION

In October 1998, Congress recognized the rapid development of the

Internet and the benefits generated by Web-based service providers to the

public. See 47 U.S.C. § 230(a) (acknowledging that “interactive computer

services offer a forum for a true diversity of political discourse, unique

opportunities for cultural development, and myriad avenues for intellectual

activity” and have “flourished . . . with a minimum of government regulation”).

In light of its findings, Congress enacted the CDA for several policy reasons,

including “to remove disincentives for the development and utilization of

blocking and filtering technologies that empower parents to restrict their

children’s access to objectionable or inappropriate online material.” Id.

§ 230(b)(4). To achieve that policy goal, Congress provided broad immunity

under the CDA to Web-based service providers for all claims stemming from

their publication of information created by third parties, referred to as the “Good

Samaritan” provision. Id. § 230(c)(1) (“No provider or user of an interactive

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computer service shall be treated as the publisher or speaker of any information

provided by another information content provider.”). Indeed, “[n]o cause of

action may be brought and no liability may be imposed under any State or local

law that is inconsistent with this section.” Id. § 230(e)(3).

Courts have construed the immunity provisions in § 230 broadly in all

cases arising from the publication of user-generated content. See, e.g., Green v.

Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003); Carafano v.

Metrosplash.com, Inc., 339 F.3d 1119, 1123–24 (9th Cir. 2003); Batzel v. Smith,

333 F.3d 1018, 1030–31 & n.19 (9th Cir. 2003); Ben Ezra, Weinstein, & Co. v.

Am. Online Inc., 206 F.3d 980, 984–86 (10th Cir. 2000); Zeran v. Am. Online,

Inc., 129 F.3d 327, 330–31 (4th Cir. 1997). For example, the Ninth Circuit held

that a Web-based dating-service provider was not liable when an unidentified

party posted a false online personal profile for a popular actress, causing her to

receive sexually explicit phone calls, letters, and faxes at her home. Carafano,

339 F.3d at 1122. Acknowledging that the immunity provision in § 230(c)(1) of

the CDA causes “Internet publishers [to be] treated differently from

corresponding publishers in print, television and radio,” id. at 1122, the Ninth

Circuit held that “[u]nder § 230(c), . . . so long as a third party willingly provides

the essential published content, the interactive service provider receives full

immunity regardless of the specific editing or selection process.” Id. at 1124.

Similarly, the Fourth Circuit dismissed a plaintiff’s claims on the

pleadings, holding that the CDA protects Web-based service providers from

liability even after the provider is notified of objectionable content on its site.

See Zeran, 129 F.3d at 333. The plaintiff in Zeran sued an Internet service

provider for failing to remove upon notice a false advertisement offering shirts

featuring tasteless slogans relating to the 1995 bombing of the Oklahoma City

Federal Building and instructing interested buyers to call the plaintiff to place

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orders. Id. at 329. After analyzing the immunity provision of § 230, the Fourth

Circuit wrote:

If computer service providers were subject to distributor

liability, they would face potential liability each time they receive

notice of a potentially defamatory statement—from any party,

concerning any message. . . . Because service providers would be

subject to liability only for the publication of information, and not

for its removal, they would have a natural incentive simply to

remove messages upon notification, whether the contents were

defamatory or not. Thus, like strict liability, liability upon notice

has a chilling effect on the freedom of Internet speech. . . . Because

the probable effects of distributor liability on the vigor of Internet

speech and on service provider self-regulation are directly contrary

to § 230’s statutory purposes, we will not assume that Congress

intended to leave liability upon notice intact.

Id. at 333.

Parties complaining that they were harmed by a Web site’s publication of

user-generated content have recourse; they may sue the third-party user who

generated the content, but not the interactive computer service that enabled

them to publish the content online. See id. at 330–31 (“None of this means, of

course, that the original culpable party who posts defamatory messages would

escape accountability. . . . Congress made a policy choice, however, not to deter

harmful online speech through the separate route of imposing tort liability on

companies that serve as intermediaries for other parties’ potentially injurious

messages.”).

The Does appear to agree with the consensus among courts regarding the

liability provisions in § 230(c)(1). They argue, however, that their claims against

MySpace do not attempt to treat it as a “publisher” of information; therefore,

they argue that § 230 does not immunize MySpace from their claims and state

tort law applies in full effect. The Does attempt to distinguish their case from

Carafano, Zeran, and other contrary authority by claiming that this case is

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predicated solely on MySpace’s failure to implement basic safety measures to

protect minors. The district court rejected the Does’ argument, stating:

The Court, however, finds this artful pleading to be disingenuous.

It is quite obvious the underlying basis of Plaintiffs’ claims is that,

through postings on MySpace, Pete Solis and Julie Doe met and

exchanged personal information which eventually led to an in-

person meeting and the sexual assault of Julie Doe. If MySpace had

not published communications between Julie Doe and Solis,

including personal contact information, Plaintiffs assert they never

would have met and the sexual assault never would have occurred.

No matter how artfully Plaintiffs seek to plead their claims, the

Court views Plaintiffs’ claims as directed toward MySpace in its

publishing, editorial, and/or screening capacities.

Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 849 (W.D. Tex. 2007).

The Does do not present any caselaw to support their argument. In fact,

they rely upon the same line of cases listed above but point to § 230(c)(1)’s grant

of immunity to publishers of third-party content as evidence that their claims

are somehow different. Other courts, however, have examined pleadings similar

to the Does’ and have reached the same conclusion as the district court. For

example, in Green, the plaintiff sued a Web-based service provider after he

received a computer virus from a third party and endured derogatory comments

directed at him by others in an online “chat room.” 318 F.3d at 469. He made

a failure-to-protect argument similar to the Does’, claiming that “AOL waived

its immunity under [§] 230 by the terms of its membership contract with him

and because AOL’s Community Guidelines outline standards for online speech

and conduct and contain promises that AOL would protect [him] from other

subscribers.” Id. at 471. The Third Circuit, however, dismissed the claims as

barred by § 230, after recharacterizing the plaintiff’s claims:

There is no real dispute that Green’s fundamental tort claim

is that AOL was negligent in promulgating harmful content and in

failing to address certain harmful content on its network. Green

thus attempts to hold AOL liable for decisions relating to the

monitoring, screening, and deletion of content from its

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network—actions quintessentially related to a publisher’s role.

Section 230 “specifically proscribes liability” in such circumstances.

Id. (quoting Zeran, 129 F.3d at 333).

Green demonstrates the fallacy of the Does’ argument. 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.

The Does further argue for the first time on appeal that MySpace is not

immune under the CDA because it partially created the content at issue,

alleging that it facilitates its members’ creation of personal profiles and chooses

the information they will share with the public through an online questionnaire.

The Does also contend that MySpace’s search features qualify it as an

“information content provider”, as defined in the CDA: “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).

Nothing in the record, however, supports such a claim; indeed, Julie

admitted that she lied about her age to create the profile and exchanged

personal information with Solis. In the February 1, 2007 hearing before the

district court, the Does admitted that Julie created the content, disclosing

personal information that ultimately led to the sexual assault, but stressed that

their cause of action was rooted in the fact that MySpace should have

implemented safety technologies to prevent Julie and her attacker from meeting:

THE COURT: I want to get this straight. You have a 13-

year-old girl who lies, disobeys all of the instructions, later on

disobeys the warning not to give personal information, obviously,

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No. 07-50345

[and] does not communicate with the parent. More important, the

parent does not exercise the parental control over the minor. The

minor gets sexually abused, and you want somebody else to pay for

it? This is the lawsuit that you filed?

MR. ITKIN [Counsel for the Does]: Yes, your Honor.

....

MR. ITKIN: The first point is we’re not complaining about

any of the content that was transmitted between Julie Doe and Pete

Solis. Our complaint is [that] the two of them never should have

been able to meet because MySpace could have implemented

technology very simple and technologically—not simple but

technologically and inexpensive age verification software that has

been asked for by attorneys general before the lawsuit happened, or

even done the things they did right after the filing of the lawsuit

that would have prevented these two people from ever meeting. We

wanted to keep the foxes out of the hen house. That’s the first

thing, your Honor, is that we’re not complaining about the content.

Throughout the hearing, the Does stated they had one argument—that

MySpace was negligent for not taking more precautions:

MR. ITKIN: Pete Solis is liable for an assault. But what

we’re trying to hold MySpace liable for isn’t the publishing of a

phone number but, rather, we’re trying to hold MySpace responsible

for not putting in the safety precautions to keep the two of them

separated.

....

THE COURT: Now, I’ve heard all of your arguments on the

negligence and the duty. Now the duty is something that’s

bothering me and that’s my next question to you. But as I read your

pleadings, they are just wholly inapplicable to the Federal Rules of

Procedure on fraud. You’ve got no specific fraud here. And on your

negligent misrepresentation, that’s just a rehash of what you’re

already doing. So we’re really talking about one cause of action, and

that is a negligence cause of action. You keep nodding. Do you

agree with that?

MR. ITKIN: I think that is a fair recommendation, a fair

statement.

....

MR. ITKIN: Thank you. Your Honor we are not—and I want

to be very clear about this. We are not complaining about any of the

content that was exchanged between Julie Doe and Pete Solis. We

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No. 07-50345

understand that that is something we cannot complain about. Our

complaint is only that these two should have never been allowed to

find each other, anyways, if reasonable safety precautions were put

in place. And under congressional law and, we believe, Texas

common law, that’s enough to state a claim.

Although the Does’ complaint alleged that MySpace allowed or encouraged

members to post information after a member’s profile had been created, counsel

for the Does reiterated in the hearing time and again that they had no

complaints or allegations regarding the content of the information posted by

Julie or exchanged between Julie and Solis. It appears that the reference to

MySpace’s solicitation of information was solely used to set up the Does’

argument that MySpace failed to protect Julie by declining to implement age-

verification software:

THE COURT: But your client violated every single thing that

MySpace says to do.

MR. ITKIN: Which is your Honor—and true. That is correct,

your Honor. But I will say that that’s a known risk to MySpace.

And that’s not just me saying it, that’s the Attorney General saying

it.

THE COURT: Everyone knows people lie. So therefore,

should you be liable?

MR. ITKIN: No, your Honor. But when you know of the risk

and you know that the people—there’s potential for lying, all you

need to do is put some basic safety mechanisms in place to

prevent—or to circumvent the lying.

THE COURT: So you’ve got the Attorney General of the

United States saying . . . don’t put your credit card on the internet,

but you want them to do it to get a free space. That’s one of the

things.

MR. ITKIN: That’s one of the things.

THE COURT: Then a driver’s license. Do you know how

many people I sentence here every Friday that have a fake driver’s

license?

MR. ITKIN: I can imagine a lot, your Honor.

....

MR. ITKIN: What we really want, your Honor, is there’s a

company out there—I’ll give you an example of one of the companies

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out there called Aristotle. Aristotle through public databases if you

enter your name, your zip code, and your birth year can come back

with, hey, this person’s real; or you can enter an e-mail and have

verification. So there’s some things to do that are less intrusive as

far as giving people your driver’s license or your Social Security

number.

....

MR. ITKIN: Your Honor, because if [MySpace] had the age

verification software in place, [Julie and Solis] never would have

talked in the first place. They never would have known about each

other.

At no time before filing their appeal in this Court did the Does argue that

the CDA should not apply to MySpace because it was partially responsible for

creating information exchanged between Julie and Solis. Because the Does

failed to present this argument to the district court, they are barred from

making this argument on appeal. See Stokes v. Emerson Elec. Co., 217 F.3d 353,

358 n.19 (5th Cir. 2000) (“Arguments not raised in the district court cannot be

asserted for the first time on appeal.”); Brown v. Ames, 201 F.3d 654, 663 (5th

Cir. 2000) (“To avoid being waived, an argument must be raised to such a degree

that the trial court may rule on it.” (internal quotations omitted)). We therefore

hold, without considering the Does’ content-creation argument, that their

negligence and gross negligence claims are barred by the CDA, which prohibits

claims against Web-based interactive computer services based on their

publication of third-party content. 47 U.S.C. § 230(c)(1), (e)(3). Because we

affirm the district court based upon the application of § 230(c)(1), there is no

need to apply § 230(c)(2), or to assess the viability of the Does’ claims under

Texas common law in the absence of the CDA.

IV. CONCLUSION

The judgment of the district court is AFFIRMED.

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