A recent decision (Julie Does II v. MySpace Inc.) by the Second Circuit Court of Appeal in California held that MySpace could not be held liable for sexual assaults on minors that started with a meeting online. The court found that MySpace was protected under Section 230 of the Communications Decency Act (CDA). I believe that the application of this section does not make sense in this case.
Section 230 prevents an online service provider from being treated as a publisher of content provided by a third party. In practice, this protects them from tort liability arising from content posted by their users. A company’s ability to rely on Section 230 hinges on two questions: (1) is the company merely an interactive computer service provider, or (2) does the plaintiff seek to treat them as a publisher? In analyzing the first question, the court asks whether the company helps generate the content. In Fair Housing Council v. Roommates.com, for example, the defendants were found not to be mere service providers because the offending content was generated by a mandatory questionnaire. The questionnaire guided users to create profiles that violated housing regulations. MySpace, on the other hand, does not require or encourage adults to communicate with minors. They cannot be viewed as having a hand in creating the communications. The second question is more interesting. A defendant is treated as a publisher if the plaintiff’s claim is based on their exercise of “traditional editorial functions” such as deciding whether to publish specific material. In this case, it was held that the plaintiffs were suggesting that MySpace should have prevented the minors from receiving communications from the offenders. In other words, they were being asked to be selective in what was posted to their website.
I find the emphasis on the role of MySpace as a publisher to be problematic. It’s rooted in an older view of the Internet. Section 230 was added to the CDA in 1996 when Congress was worried about objectionable content being published on what were basically static web pages. Truly interactive computer services—services that actually have a function beyond merely publishing opinions—were years away. Modern social networking sites have a function that goes beyond mere publication of user-generated content. They include tools for introducing people to new friends. It is this function that the plaintiffs claim is negligent. The do not claim that MySpace should have censored the messages. They claim that MySpace was negligent in creating tools that introduce 14-year olds to strangers in their twenties. I think this claim deserves to be considered (though I don’t think MySpace was in fact negligent). This same problem appeared in Roommates.com. In that case, the court had to find a way to make the website responsible for the content in user profiles, but really it was the function of the website that was at issue. Roomates.com provided tools that allowed people to filter prospective roommates and tenants by prohibited criteria.
As interaction between people increasingly moves online and online services become more complex, the question of whether a website is responsible for what its users do with it needs to become more nuanced. Websites that serve a purpose beyond merely hosting user-generated content should not be granted an automatic pass merely because the result is presented to the user in a form that resembles publication.