SexSearch.com afforded Section 230 protection in a case with an unconventional plaintiff

Doe v. SexSearch.com, No. 07-604, — F.Supp. —-, (N.D. Ohio August 22, 2007)

Hat tip to Michael Erdman of the new Online Liability Blog for his comprehensive post on this week’s decision by the U.S. District Court for the Northern District of Ohio in an interesting case involving Section 230 immunity.

The facts of the case are pretty wacky, and the alignment of the parties is not what you’d expect. Anonymous plaintiff Doe sued SexSearch.com for, among other things, breach of contract, fraud and breach of warranty after he was arrested for illegal sexual conduct with a minor he met through the SexSearch.com website. The girl’s profile stated she was 18 when in reality she was only 14.

SexSearch filed a 12(b)(6) motion to dismiss, asserting immunity under the Communications Decency Act at 47 U.S.C. § 230. Section 230 provides 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,” and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The court granted the motion to dismiss.

There are a couple of particularly interesting points in the court’s decision, although the outcome is not surprising, considering the generally favorable treatment Section 230 has gotten over the past decade or so, starting with the 4th Circuit’s decision in Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997).

In this case, the plaintiff argued that SexSearch, and not the author of the profile, was the actual information content provider because SexSearch “reserved the right, and [did] in fact, modify the content of profiles when they [did] not meet the profile guidelines and as such they [were] responsible in whole or part for the creation or development of the information.” The court rejected this argument, because while SexSearch may have reserved the right to modify the content, the complaint did not allege that SexSearch modified the content in question.

Another interesting point in the case was the court’s confirmation that Section 230 applies not only to tort claims, but other causes of action as well. The plaintiff had argued that Section 230 immunized service providers only from causes of action for defamation. Citing to a number of cases, however, in which Section 230 had immunized defendants for causes of action such as breach of contract, negligence and violation of state commercial e-mail laws, the court looked to the plain language of the statute, which provides that “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.

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