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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Jane Doe, individually and as next friend of Julie Doe, a minor v. Myspace Inc. and News Corporation

No. 07-50345 (5th Cir., May 16, 2008)

Affirming the decision of the District Court below, the Fifth Circuit holds that section 230(c)(1) of the Communications Decency Act immunizes the social networking site Myspace Inc. from claims of negligence and gross negligence arising out of the alleged sexual assault of a minor made possible by her posting of a ‘user profile’ on  As a result of this posting, a male, age 19, made contact with the minor, who falsely represented she was 18, and sexually assaulted her.  The Fifth Circuit held Myspace was immunized from plaintiff’s negligence and gross negligence claims, because they sought to hold Myspace liable for its role in making content authored by a third party – the minor’s user profile and personal information contained therein – available to third parties. 

In reaching this result, the Fifth Circuit rejected plaintiff’s attempt to avoid the bar of the CDA by arguing that they sought to hold Myspace liable for its alleged failure to institute adequate safety measures to protect minors, particularly from sexual predators.

Because the Fifth Circuit held that Section 230(c)(1) of the CDA barred plaintiffs’ claims, the Court did not review so much of the District Court’s decision that held that those claims were also barred by both Section 230(c)(2) of the Communications Decency Act, as well as applicable principles of Texas common law.

Myspace is a social networking site.  Users are permitted to create profiles, which contain information about themselves.  Once a user has created a profile, he can extend ‘friend invitations’ to other members who can then view the profile and communicate with the user.

Members are cautioned about posting personal information, such as telephone numbers, last names and email addresses on their profile.  Users must represent they are at least 14 years of age to use the site.  Users who advise Myspace that they are 14 or 15 years of age are subject to special protections – their user profiles are set as ‘private’ which restricts their access by Myspace users they have not ‘friended.’

A then 13 year old minor, Julie Doe, created a Myspace user profile in which she falsely claimed to be 18.  Julie Doe was contacted by a 19 year old male, who obtained her telephone number and arranged a meeting, at which he purportedly sexually assaulted Julie Doe.  This individual was subsequently arrested and indicted for sexual assault.
Plaintiff commenced this suit, charging Myspace with negligence and gross negligence as a result of its alleged failure to take adequate steps to verify the age of its users, or to protect minors such as Julie Doe, who used its services, from sexual predators.

Affirming the decision of the District Court below, the Fifth Circuit dismissed these claims, holding Myspace immunized therefrom by operation of Section 230(c)(1) of the Communications Decency Act.  The CDA grants ‘broad immunity’ and provides that ‘no 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.’

Because plaintiff’s negligence and gross negligence claims sought to hold Myspace liable for making available content authored by a third party - Julie Doe’s user profile, and the personal information contained therein – it was barred by operation of the CDA.

In reaching this result, the Court rejected plaintiff’s contention that its claims were not barred because they were grounded on Myspace’s failure to provide adequate protection to the minors who used it services.  Following the Third Circuit’s decision in Green v. AOL, 318 F.3d 465 (3rd Cir. 2003), the Fifth Circuit held that this was nothing more than an attempt to hold Myspace liable for allowing others to access content created by Julie Doe, which was prohibited by the CDA.  Said the Fifth Circuit:

Green demonstrates the fallacy of the Does’ argument.  [Plaintiffs’] 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 communication with [the male who allegedly assaulted her].  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 Fifth Circuit accordingly affirmed the District Court’s dismissal of plaintiffs’ claims under Section 230(c)(1).  As a result, it held it had ‘no need to apply Section 230(c)(2) or to assess the viability of the Does’ claims under Texas common law in the absence of the CDA” and thus did not address so much of the District Court’s decision which held plaintiffs’ claims were also barred by operation of Section 230(c )(2) of the CDA and applicable provisions of Texas common law.

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