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Tuesday, June 20, 2006

MySpace Sued for Third-Party Tort

In an interesting case with challenging duty and legal cause issues (along with a fundamental question of what ordinary care means in the context), incredibly (and inexplicably) successful web space company MySpace has been sued by a Texas woman on behalf of her fourteen-year-old daughter.  The daughter was allegedly sexually assaulted by another MySpace user.  The claim focuses on the site's relatively sparse identity and age confirmation processes, and alleged failures to protect against sexual predators.

The Register has one story, as does the WSJ Law Blog (complete with helpful comments like "this is really stupid why would you try to sue a website because your stupid" from "Thunder Down Under").  The law firm's press release links to other coverage.

http://lawprofessors.typepad.com/tortsprof/2006/06/myspace_sued_fo.html

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On MySpace, a 19-year-old Texas youth approached a 14-year-old girl; his profile claimed that he was a high school senior on the football team. She says that following a series of emails and phone calls,... [Read More]

Tracked on Jun 20, 2006 9:06:33 PM

Comments

this could be a big case given the huge popularity of that site...do you think the company has any possible negligence to duly protect underage users from possible internet predators ? Was the sexual assault something that they could have reasonably predicted would happen without more strignent security safeguards?

Posted by: Jason | Jun 20, 2006 11:03:49 AM

I would be surprised if a court were to conclude that the company had no duty, given the fact that there surely are situations in which a court would want there to be the potential for liability. (Say, if the company sold personal information about underage users to known pedophiles -- *not* what is alleged here.)

The trickier question is whether the company failed to act with ordinary care and whether, if it didn't, this harm is deemed foreseeable. (There may, of course, also be defenses like comparative fault, though it's tricky making that argument with such a young plaintiff.)

Of the breach and legal cause questions, I think breach is the closer one. I don't know what a reasonably prudent social networking site does along these lines. I'd sure be interested to know what places like Friendster, Gather.com, and other roughly comparable sites do, though it wouldn't be dispositive. If there's a decent claim of breach in connection with the protection of underage users, I would imagine most juries would find this harm to be within the universe of foreseeable harms.

There might also be a statutory overlay here; I believe there are some requirements in connection with what websites do with underage users. But I don't know the specifics of those requirements at all.

Posted by: Bill Childs | Jun 20, 2006 11:39:16 AM

Bill, I believe you're referring to COPPA, which governs the collection of personal information of children under 13. As the girl in question is 14, it doesn't apply - unless there is another statute I'm missing.

I wonder what exactly a social networking site like MySpace CAN do to verify a user's honesty - or at least protect themselves from liability in a situation like this. Is a "signature" collected upon profile creation -- i.e., a statement that says that the user of the profile is responsible for the veracity of the information -- sufficient? Is there anything else they can even do?

And as for the comments on the Law Blog...well, school IS out for summer. Though from the spelling I'm not sure how much attention they paid while they were there.

Posted by: Matt Wester | Jun 20, 2006 12:39:00 PM

Thanks, Matt. COPPA is indeed what I was thinking of, but couldn't remember the threshold age. I wonder if it would preempt any more stringent state requirements. (I don't know of any; just thinking out loud.)

As for what else could be done: I remember reading a story several years ago about the age verification businesses that were formed around the time of much hype about the availability of adult content on the web. Now, those companies were presumably confirming that people were at least 18 by way of (perhaps) credit records, government IDs, etc.

So that is a much more specific factual assertion and verification, not directly applicable here. But I suppose one could argue that they should verify those relatively easily verified representations as potential indicators of likely misrepresentations. And they could use the same technologies to come closer to confirming that they know who their users, in fact, are.

Again, I don't think this is an easy case to win. I'm trying to track down a copy of the complaint and will post it if I get it.

Posted by: Bill Childs | Jun 20, 2006 12:53:49 PM

I recall those age-verification services as well. At the same time, though, any web service relies on the user to provide input. There's nothing preventing an over-18 person from lying and saying "Nope, I don't have any of those materials, I'm under 18" -- which is precisely what happened in this situation, as I understand from the news articles. Do under-18s have any sort of legal documentation, short of SSNs (which aren't necessarily universal, and have their own burden)?

Many adult-content websites that didn't choose to subscribe to one of those age-verification services merely required that visitors click a button that states "Yes, I am of legal age in my residence to view pornographic content." Obviously this doesn't prevent a minor from lying and clicking "Yes" regardless of his age, but I wonder if that sort of "user verification" at least shifts the burden to them, away from the company -- and specifically if that's been tested in court. If it has, and it's held up, then MySpace may be able to say, in effect, "We're just hosting these profiles, the individual user is responsible for content. If you have proof of a false profile we can take it down, and we'll cut out any obscenity, but otherwise we're not responsible for content." If that defense has been to court and shot down, then I'm not sure what, if anything, MySpace could do from a technological or process standpoint to satisfy the requirements of verification of age and truthfulness.

Posted by: Matt Wester | Jun 20, 2006 1:16:51 PM

I think you're correct that the technology/verification process is difficult if not impossible especially for ages below 18. Could that mean that it is simply negligent to have such a service at all? Is this the equivalent of using social risk-utility in the products context? Or perhaps it means that the market just hasn't answered yet. Maybe the verification has to be through a parent (still imperfect but less so).

My gut is that the entities that do the equivalent of pure user trust (i.e., just saying "Click here to confirm that you're over 18" or whatever) can't just say "We did what we could." If the technology is there to do a better (albeit still imperfect) job and it can be done for relatively low cost, my guess is that the plaintiff at least gets to the jury.

I've now posted the complaint (in a separate posting), and, as you'll see, better age verification is indeed what it seeks. I'll be interested to hear your comments on it. For now, I'm off to take the kids to swimming...

Posted by: Bill Childs | Jun 20, 2006 1:24:32 PM

My prediction is below:

Myspace wins on summary judgment after paying $150,000 to their attorneys. Plaintiff's attorney then appeals, at which time Myspace settles for $100,000, of which $50,000 goes to plaintiff. Myspace pays their attorneys another $20,000 for the settlement. This process takes two years.

End result
-------------
Defendant's attorneys: $170,000 wealthier.
Plaintiff's attorney: $40,000 wealthier.
Court support services: $10,000 wealthier.

Defendant: 2 years of misery and $270,000 poorer.
Plaintiff: 2 years of having their grief extended and $50,000 wealthier.

Plaintiff's lawyer doesn't advise his client that she would be better off just moving on with her life. Defendant's lawyer is eager to extend the case to bill time. Plaintiff's and defendant's lawyers are ever ready to extend the parties grief and misery for profit. The only winners here will be the lawyers.

Posted by: AM | Jun 21, 2006 12:43:16 AM

but the Kid said he was in High School.. .I've known 18 and 19 year olds as Seniors in High School... so nothing said he could not be there... However when the girl signed up.. she was only 13.. and the Web Site said you had to be 14, so if SHE had not lied, she never would have gotten in trouble.

Maybe we should teach people to deal with Following Rules?!

Posted by: Jim | Jul 2, 2006 10:06:21 PM

He also did misrepresent his age in a way that made it so he could access her profile. Under MySpace's rules, if he had been accurate in identifying his age, he would not have had any ability to contact her.

Posted by: Bill Childs | Jul 3, 2006 3:59:35 AM

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