In a case in US District Court titled Doe v. MySpace, a minor girl aged 13 signed up in MySpace representing herself as 18 - it must be noted here that according to the terms and policy of MySpace a person under 14yrs of age are not allowed to avail of their services-, signed up. She then met a 19 year old man whom she then talked with on the phone and then allegedly assaulted her.
The plaintiffs in that case, the minor and her mother, claimed that MySpace failed to take adequate precautions to protect the minor from getting assaulted. On the other hand, MySpace based its defense on Section 230 of the US Communications Decency Act which in quote states that:
"No 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."
The Court therein dismissed the case holding that MySpace is immune from the cause of action of the plaintiff based on the said statute as interpreted in the case of Zeran v. AOL. The Court also stated that MySpace has no legal duty to protect its users from criminal acts of a third person or control the conduct of another. Furthermore, it implied that to require MySpace to confirm or determine the age of each applicant would entail a heavy burden on MySpace and this is what the said statute protects publishers of a third party content from.
If this case happened in the Philippine setting, would the court exempt MySpace from the suit. If it was indeed established that the girl was assaulted by the man and that the contact between them was done through MySpace, would the still dismiss the case? I believe that if the Court would rule in favor of MySpace, it would be on the basis of the concept of proximate cause. This is because our law punishes the publisher as can be seen in the Revised Penal Code. I believe that this is a better way of ruling over the case because exempting a publisher from torts because the work or article that is libelous was made by a third party leaves victims with no recourse against anyone if the third party is unanimous. This exemption might also lead to dubious decisions such as in the case of Michelangelo Delfino v. Agilent Technologies where a California Appellate Court held the defendant-employer to be an ISP and hence immune from a tort arising the wrongful actions of an employee by using that access.
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2 comments:
i think that myspace would not be held liable. it is after all just a passive medium through which the victim and her attacker met. so no, myspace shouldn't be treated as a publisher for the attacker.
furthermore, i don't see what further precautions it could have done to protect the minor. if it should be held liable, then the minor's parents should also be held liable since they also failed to monitor their child's online activities.
Let us step back. In the first place, who is the third party that published the content? The girl since she is the one who built her site in MySpace and through which she met her attacker.
In my opinion, the issue of whether MySpace was a third party content publisher and therefore can avail of the immunity granted by Section 230 shouldn't have been used by the court in deciding the case.
Why? Because the cause of action of the plaintiff was the negligence - in not protecting minors like the girl in this case - and misrepresentation - that the site is safe - of MySpace. It is not based on the information posted by the GIRL but by lack of safety precautions.
Treating MySpace as a "third party content publisher" made Section 230 operative. And I think you agree with this because you think that MySpace is a "passive medium." But then again, the complaint did not call for that issue because the cause of action was based on the alleged negligence and misrepresentation. The court should've addressed the merits of the case on the issue of whether or not there was indeed negligence and misrepresentation.
However, I side in favor with MySpace because I believe that the proximate cause of the attack was the girl's act of entertaining the attacker through the cellphone and by arranging an after school meeting - wherein she was attacked.
Now another question arises. What if the girl is under 9 years of age? Based on Philippine Jurisprudence, a minor under 9 years of age is incapable of contributory negligence.
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