In Doe v., Inc., the Sixth Circuit considered the appeal of a user of the SexSearch online dating service from dismissal of his breach of contract, fraud and other state law claims (based on Ohio law) against the service for its failure to screen out underage minors. Doe was arrested and charged with unlawful sexual conduct with a minor for his encounter with a fourteen year old who represented herself on the service as eighteen. As the opinion notes, the charges were later dismissed and the record sealed for reasons undisclosed, but Doe subsequently brought suit claiming that the service was at fault for his relationship with the minor and for the resulting harm caused by his arrest.

In a relatively brief opinion, the court upheld the district court’s dismissal of each of Doe’s 14 causes of action for failure to state a claim, based in large part upon the disclaimers contained in the Terms and Conditions in the contract.

In dismissing Doe’s breach of contract claim, the court stated that the Terms and Conditions "constitute the content of the contract" and noted that it disclaimed any responsibility to verify the accuracy of information provided by other members of the service. Also of interest in the opinion is the appeals court’s treatment of the CDA Section 230 issues reached by the district court, discussed further below.

Similarly as to the fraud claim, the court found that Doe could not have justifiably relied on a warning on the site that "all persons within this site are 18+" because the Terms and Conditions disclaimed any warranty based on any statement on the site itself that was not also contained in the Terms and Conditions, and because Doe knew from registering for the site himself that age was indicated by a check box and required no verification by the service. The claims for deceptive practices under the Ohio Consumer Sales Practices Act and common law duty to warn were rejected on the ground that Doe, based on the disclaimer and his own completion of the registration process, could not have been deceived by the warning that all users of the site were over 18. A claim of breach of warranty under the Ohio UCC, also based on the warning, was rejected because the UCC applies to the sale of goods, not to services.

The court also rejected Doe’s claims under the Ohio statute that prohibits "an unconscionable act or practice in connection with a consumer transaction," in particular his claim that the inclusion of a term limiting damages for use of the service to the amount of the contract was unconscionable. The court determined that under Ohio law, a limitation of liability provisions, while "viewed critically," may be bargained for and will be enforced absent public policy, unconscionability or vague or ambiguous terms. Interestingly, the court found that it is the nature of the SexSearch service that makes it commercially reasonable to limit liability:

A SexSearch gold membership costs $29.95 per month. Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless. For example, arrest, diseases of various sorts, and injuries caused by irate family members or others may be the result of such hedonistic sex. When selling such services, then, it is commercially reasonable for SexSearch to limit its liability to the price of the contract.

While the district court held that a number of Doe’s claims were also barred by Section 230 of the Communications Decency Act, the appeals court determined that it was unnecessary to reach the Section 230 issues and in fact pointedly disclaimed the lower court’s construction of Section 230:

Because we agree with the district court that Doe’s complaint failed to state a claim, we do not reach the question of whether the Communications Decency Act provides SexSearch with immunity from suit. We do not adopt the district court’s discussion of the Act, which would read § 230 more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services. We do not have before us any issue concerning the criminal liability of the parties or the voidability of contracts for sexual services.

Doe v. SexSearch, Inc., No. 07-4182 (6th Cir. Dec. 30, 2008), slip op. at 2.

It’s not clear from this brief discussion exactly in what respect the appeals court deemed the district court’s opinion to depart from generally accepted principles in the application of Section 230. Perhaps it is the following passage, in which the district court concludes that Section 230 is not limited to defamation claims or even to tort claims, but encompasses all potential civil claims against a provider based upon third-party content.

Excerpt from district court opinion:

While both Carafano and Zeran speak only in terms of tort liability, as there was no occasion to address non-tort claims in those cases, their reasoning does not preclude Section 230 immunity from extending to Plaintiff’s non-tort claims. Indeed, the plain language of Section 230 does not limit its grant of immunity to tort claims: “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.” 47 U.S.C. at § 230(e)(3) (emphasis added). Further, the legislative history demonstrates Congress intended to extend immunity to all civil claims: “This section provides ‘Good Samaritan’ protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material.” 142 Cong. Rec. H1078 (1996) (emphasis added).

Thus, the CDA grants immunity from all civil liability, except for the few exceptions expressly consistent with this section; and (4) the Electronic Communications Privacy Act of 1986. 47 U.S.C. § 230(e). In fact, several courts have specifically applied Section 230 to breach of contract claims. Jane Doe One v. Oliver, 755 A.2d 1000, 1002, 1004 (Conn. Sup. Ct. 2000); Schneider v., Inc., 108 Wash. App. 454, 464 (Wash. Ct. App. 2001); Green v. America Online, Inc., 318 F.3d 465, 471 (3d Cir. 2002) (holding AOL did not waive Section 230 immunity by the terms of its membership contract).

Therefore, in determining whether to apply the CDA, the Court should not ask what particular form the plaintiff’s claim takes — whether it sounds in tort or specifically alleges defamation (if such were the case, plaintiffs could plead their way around the CDA and undermine the will of Congress) –but whether the claim is directed toward the defendant in its publishing, editorial, and/or screening capacities, and seeking to hold it “liable for its publication of third-party content or harms flowing from the dissemination of that content.” Doe v. Myspace, 474 F. Supp.2d at 849. See also Green, 318 F.3d at 471; Noah, 261 F. Supp. 2d at 538-39;

Doe v., 502 F. Supp. 2d 719, 724 (N.D. Ohio 2007), aff’d, in part on other grounds No. 07-4182, 2008 WL 5396830 (6th Cir. Dec. 30, 2008).

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Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise…

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.