By Ryan Calo on February 5, 2009 at 4:14 pm
Author: Robert Lopez
John Doe sued SexSearch.com, an online adult dating service, alleging fourteen violations of Ohio law. Each count attempted to hold SexSearch.com liable for Doe’s illicit relationship with a minor who misrepresented her age in violation of SexSearch.com’s terms of use. The Sixth Circuit upheld the ruling of the Northern District of Ohio, but refused to adopt its reading of the Communications Decency Act (CDA). 47 U.S.C § 230(f)(2). The court stated that the district court “read § 230 more broadly that any previous Court of Appeals decision” and that such a reading could “potentially abrogat[e] all state or common-law causes of action brought against interactive Internet services.” Instead, the Sixth Circuit invalidated all fourteen claims holding that each one failed to state a valid claim under Ohio law.
John Doe signed up for SexSearch.com’s service, where he met and contacted another member of the service, Jane Roe. SexSearch represented on its website that it only allowed adult members, leading Doe to believe Roe was of age. This belief proved unfounded; the police surrounded Doe’s house and arrested him for three counts of unlawful sexual conduct. Based on this harm, Doe pleaded fourteen causes of action under Ohio law attempting to hold SexSearch liable either for failing to discover Jane Roe’s correct age, or for creating an unconscionable contract. The Sixth Circuit upheld the ruling of the Northern District of Ohio, but denied its reading of the Communications Decency Act (CDA).
The district court construed the immunity granted by the CDA broadly. Relying on the language of the statute, the court extended tort cases like Carafano v. Metrosplash.com and Zeran v. America Online to grant immunity for interactive computer service providers “from all civil liability, except for a few exceptions.” The court found that for purposes of the relevant conduct, SexSearch acted as an “interactive computer service” entitling the website to immunity as a publisher. The district court also stated Doe v. Myspace foreclosed any “artful pleading” loophole to CDA immunity. The CDA granted immunity for eight of the fourteen counts and no remaining count stated a claim.
On appeal, the Sixth Circuit declined to perform an analysis under the CDA. It stated that no interpretation of the CDA was necessary because each count was defective under Ohio law. The court explicitly refused to adopt the District Court’s construction of the CDA that “read § 230 more broadly that any previous Court of Appeals decision” as such a reading could “potentially abrogate[e] all state- or common-law causes of action brought against interactive Internet services.” The court did not provide any guidance on the correct scope of the CDA and “explicitly reserve[d] the question of its scope for another day.”
The circuit court then dismissed the claims for failing to state a valid breach of Ohio law. The claims broke down primarily into four categories. One set of claims focused on SexSearch’s alleged failure to inform Doe of an underage user. These claims, which fell under the consumer protection act, the common law of fraud, and the common law of failure to warn, were invalidated because the danger of a minor on the website was obvious from the SexSearch’s age verification policy, its disclaimers, and general knowledge of the Internet. The court found that the harm alleged did not justify an award for infliction of emotional distress and that the lack of a special relationship precluded a claim for misrepresentation. The court held that the click-wrapped contract between Doe and SexSearch was valid, including a liquidated damage clause for the cost of SexSearch’s service and the website’s right to terminate users at will. This invalidated any counts requiring unconscionability. Also some of the unconscionability claims failed to state a claim because the remedy they sought was not reformation of the contract or declaratory judgment. Finally, the court ruled that SexSearch supplied a service under Ohio common law rather than a product, making warranty claims inapplicable.
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