How will MySpace.com defend itself in the recent assault lawsuit?

Techdirt reports that a Texas teenager and her mother have sued MySpace.com, claiming that it failed to protect the teenager from an alleged predator she met online who assaulted her. It will be interesting to see if and how MySpace might try to use Section 230 of the Communicaitons Decency Act, 47 USC §230, in its defense.

The closest precedent we have to look at is a case called Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001). In that case, the Supreme Court of Florida held that 47 U.S.C. §230 preempted a mother’s negligence suit against AOL arising from the illegal conduct of an AOL subscriber. The mother alleged that AOL negligently failed to terminate the account of a subscriber who used a chat room to promote the sale of obscene photographs and videos of the mother’s minor son.

Adopting the Fourth Circuit’s reasoning in Zeran v. America Online, Inc., the court held that finding AOL negligent for its failure to police the conduct of chat room participants would be to treat AOL as a publisher of the complained of conduct. Such treatment would be at odds with the provisions of Section 230, and thus the negligence action was preempted.

In the Doe v. AOL case, the alleged illegal conduct took place online. In the MySpace.com case, the alleged illegal conduct arose from an online meeting, but actually took place offline. Will that difference affect the viability of a Section 230 defense?