Citation[]
Doe v. SexSearch.com, 502 F.Supp.2d 719 (N.D. Ohio 2007) (full-text), aff'd, 551 F.3d 412 (6th Cir 2008) (full-text).
Factual Background[]
Sexsearch.com is an internet dating service that allows users to create a profile and meet other users. John Doe met and had sex with a partner that had written on her profile that her age was 18 when she was actually 14. This resulted in criminal proceedings against him. John Doe contended that the website warranted that all people using the site were 18 and over and also that the site's Terms and Conditions (TAC) promised to review, verify and approve all profiles on its website and remove materials depicting minors. Defendants Sexsearch moved to dismiss.
Trial Court Proceedings[]
John Doe filed 14 causes of action that all boil down to (1) whether the website should be held liable for not discovering the underage user and (2) whether the TAC was unconscionable.
Sexsearch argued immunity to the claims under the Communications Decency Act (CDA) which states in Section 230 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.” Defendant is immune from liability under state law claims if: (1) SexSearch is a “provider or user of an interactive computer service”; (2) the claim is based on “information provided by another information content provider”; and (3) the claim would treat SexSearch “as publisher or speaker” of that information.
An “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.”[1] The court found Sexsearch clearly fit this definition.
“Information provided by another” is defined as “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.”[2] John Doe argued that because the website reserves the right to modify accounts, the information is not provided by another. Since there is no allegation that Sexsearch actually tried to modify the minor's account, the court found that this was information provided by another.
Plaintiff also argued that Section 230 is intended to apply only to defamation cases. The court held instead that its immunity is broad and far-reaching. The policy reason being to protect online intermediaries from tort claims for injurious online speech. This is in essence a free speech protection. Free speech online would be inhibited if providers could be held liable for not screening all users.
Although before this case the law only applied for tort immunity, Section 230 states “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”[3] Therefore, the type of claim is unimportant. It only matters whether the claim is directed toward the defendant in its publishing, editorial, and/or screening capacities.
For this reason the court found Sexseach immune from any claim requiring Sexsearch to remove or screen the underage girl's profile.