On May 16, 2008 the U.S. Court of Appeals for the Fifth Circuit agreed with a number of other courts, holding that the Communications Decency Act (“CDA”) (47 U.S.C. Sec. 230) protects social networking websites from liability with respect to negligence claims based on third-party content published on the website and the consequences stemming from such content. In Doe v. MySpace, Inc., No. 07-50345, 2008 WL 2068064 (5th Cir. May 16, 2008), the plaintiff argued that MySpace negligently failed to implement appropriate technological safeguards to prevent the plaintiff, a 13-year-old, from registering on MySpace. The plaintiff lied in her registration materials, pretending to be 18 years old, and ignored MySpace’s warnings against sharing personal information on the website by posting her phone number. According to the plaintiff, the technological safeguards would have prevented her from meeting and being sexually assaulted by another MySpace user.

The so-called “Good Samaritan” provision of the CDA sets out, at 47 U.S.C. Sec. 230(c)(1), 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.”  This immunity provision has been construed broadly in cases involving the publication of user-created content.  Nevertheless, in Fair Housing Council v. Roomates.com LLC, 489 F.3d 921 (9th Cir. 2007), aff’d en banc 2008 (9th Cir., April 3, 2008), the Ninth  Circuit Court of Appeals found Roommates.com was not immunized under Section 230(c) because it required every user to answer questions regarding the user’s age, sex and sexual orientation. The Ninth Circuit held that these questions allowed users to discriminate against other users in violation of the Fair Housing Act. For more information, see our blog entry here.  

In Doe v. MySpace, the Fifth Circuit found that the CDA immunized MySpace from the plaintiff’s negligence claim because it was merely the web-based publisher of third-party information, not the author of the content.  Although the plaintiff claimed that she was not seeking to hold MySpace liable as a publisher of third-party content, the court held that the plaintiff’s allegations “speak to MySpace’s role as a publisher of online third-party-generated content,” and thus the CDA applied.  he plaintiff also argued that MySpace encouraged or allowed members to post information after the profiles had been created, and therefore that MySpace would not be immunized by the CDA because it partially created the content. The court declined to review the issue as plaintiff failed to raise it in the lower court. 

Unlike Roomates.com, MySpace does not require its users to post personal information that could potentially lead to discrimination. Moreover, MySpace discourages its users from sharing of personal information on its website whereas Roommates.com made sharing personal information a requirement of using the service. 

Section 230(c) of the CDA will be addressed further in the ongoing Subway v. Quiznos case (Doctor’s Associates Inc., v. QIP Holders LLC) involving sandwich giant Subway suing rival Quiznos. The case revolves around user-generated videos created at Quiznos behest that compare Subway’s sandwiches unfavorably to Quiznos’. Quiznos claims that the videos were not created by the company and that the online posting of the videos is protected by the CDA as Quiznos was merely hosting the website. Advertisers are concerned that they will no longer be able to run contests featuring user-created content comparing their product to a competitor’s. The case will be tried in a Connecticut federal district court in 2009.

Adam Rottenberg, a summer associate in Proskauer’s Los Angeles office, contributed to this post.