Is a digital media website the “developer” of all information that it requires users to include in on-line profiles? The disturbing answer, according to a recent court opinion, is “yes.”
In a May 22, 2009 ruling, Judge Schell of the Eastern District of Texas dismissed a complaint for negligence, gross negligence and strict products liability against MySpace brought by on behalf of a 15 year old girl who was assaulted by a person whom she met on MySpace.com. See Doe IX v. MySpace, Inc., United States District Court, Eastern District of Texas, No. 4:08-CV-140 (Order granting motion to dismiss). The plaintiff claimed that MySpace was negligent for “refusing to employ reasonable safety features on its website.” Order at 2. The plaintiff also argued that MySpace was not entitled to Communications Decency Act immunity because it provided prompts to assist users in creating profiles and thus was a co-developer of the profiles. Presumably the criminal who assaulted the plaintiff had been assisted by these prompts in creating the profile through which he met the plaintiff. Id.
The court rejected both of these arguments. On the first claim, the Court held that in effect the claim was attempting to hold MySpace liable for publishing information furnished by another information content provider. “Failing to employ reason safety features” means much the same thing as negligently deciding whether or not to publish a particular profile — a traditional function of a publisher. Id. at 2.
On the second claim, the plaintiff argued that MySpace was a co-developer of the profiles on its sites because when a user creates a profile, MySpace prompts the user to enter additional information about “Interests & Personality”, “Name”, “Basic Info”, Background and Lifestyle,” Schools,” Companies,” Networking,” and “Song & Video on Profile.” The plaintiff claimed that the use of such prompts in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) was held to make a website a developer of information on the profile. Id. at 3.
The judge rejected this claim, because “[t]he Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, an (sic) information content provider.” Because MySpace users are not required to provide any additional information, MySpace is not an information content provider. Order at 3.
The result in this case is not out of line with prior decisions on the Communications Decency Act. However, I do take issue with his reasoning in finding the MySpace was not a co-developer of its user profiles. While it is true that inRoommate, users were required to enter certain information in profiles, it was not this factor alone that made Roommate a developer of the information on those profiles. After all, many interactive websites require a user to enter basic information such as the user’s name, email address and gender. Rather, the problem for Roommate was that the information it required users to provider was found to be discriminatory. As the Ninth Circuit noted: “Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business.” Fair Housing Council, 521 U.S. F.3d at 1166.
The real issue for ISP liability should be whether it is culpable in eliciting the illegal content from a third party. As long as an ISP provides neutral tools to assist users in creating and searching for content — as MySpace appears to have done here — then it should get Communications Decency Act protection as not being the publisher or speaker of this material. On the other hand, if a website encourages users to post illegal material, that is a different story.