Supreme Court Asked to Overturn ISP Immunity in Sex Assault Case

The mother of a teenager who was sexually assaulted by a man she met on MySpace has asked the U.S. Supreme Court to review the 5th Circuit's finding that the social networking site was not responsible for allowing the man to use it.

The 5th U.S. Circuit Court of Appeals ruled in May that Section 230 of the Communications Decency Act shields MySpace Inc. from the suit, which alleges the company knows that thousands of sexual predators use the site to contact children but fails to prevent them from doing so.

The suit boiled down to an attempt to treat MySpace as the publisher of the messages the teenager exchanged with the man who assaulted her, but Section 230 immunizes online service providers from state tort claims stemming from information or content provided by third parties, such as users of a service, the 5th Circuit said.

The purpose of Section 230 is to ensure that the threat of litigation would not discourage the growth and development of the Internet.

Plaintiff "Jane Doe" argues that the federal courts have interpreted Section 230 increasingly broadly, so that it now provides interactive sites with blanket immunity from all tort suits triggered by the actions of any users.

MySpace.com allows users to create profiles consisting of text, video, photographs and other materials. Users can link to other people's profiles or invite others to link to their profiles.

Doe sued MySpace and parent company News Corp. in New York state court on behalf of her daughter "Julie Doe," alleging negligence, fraud and misrepresentation.

The companies gave users like Julie and her mother a false sense of security when in fact they were "utterly ineffective" in deterring sexual predators, the suit said.

According to the complaint, Julie, a Texas resident, created a profile on MySpace.com in summer 2005, when she was 13.

The next year a 19-year-old MySpace user, also a Texas resident, contacted her, met her in person and sexually assaulted her, the suit said.

The defendants removed the case to New York federal court and successfully moved for a transfer to the U.S. District Court for the Western District of Texas.

U.S. District Judge Sam Sparks then granted their motion to dismiss, and the plaintiffs appealed to the 5th Circuit, which affirmed.

In her petition for certiorari, the plaintiff says the 5th Circuit and other federal courts have steadily expanded the preemptive scope of Section 230, making much of the Internet a "virtual wild West" in which site owners have no legal obligations to play any role in ensuring the safety of their users.

Only the 7th U.S. Circuit Court of Appeals got it right when it ruled earlier this year in Chicago Lawyers Committee for Civil Rights Under the Law Inc. v. Craigslist Inc., 519 F.3d. 666 (2008), that Section 230 preempts only a limited class of state law tort claims that hold interactive computer services liable as the publishers of tortious speech by other third-party users, Doe says.

She asserts that MySpace should not be immune from suit because she is not trying to hold the company liable as a publisher of a third party's content, a concept that arises out of defamation law.

Rather, she says, she is trying to make MySpace use adequate safeguards to protect children from sexual predators.

The petition asks the Supreme Court to limit the scope of Section 230 immunity and to resolve the conflict between the 7th Circuit and other federal appeals and trial courts that have interpreted the section more broadly.

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Does is represented by Jason A. Itkin and Kurt B. Arnold of Arnold & Itkin in Houston.