The 6th U.S. Circuit Court of Appeals has ruled that an adult dating website cannot be sued for failing to prevent a minor from misrepresenting her age, but dodged the issue of whether SexSearch.com was immune from liability under federal law.

The case is one of first impression, arising from the arrest of an Ohio man who had sex with a 14-year-old girl after finding her profile -- in which she listed her age as 18 -- on SexSearch. The man, identified only as John Doe, sued the website in March 2007, alleging among other things that it breached its contract with him by allowing a minor to become a member.

SexSearch's terms and conditions of service require members to be “eighteen or over to register.” Doe also alleged the site fraudulently represented that all members were adults.

In a Dec. 30 opinion, the 6th Circuit said a trial judge correctly dismissed the case for failure to state a claim. But it also refused to “reach the question of whether [Section 230 of] 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,” Senior Judge Gilbert S. Merritt wrote for the court.

Section 230 distinguishes between an interactive service provider (ISP) and an internet content provider (ICP), saying that no ISP “shall be treated as the publisher or speaker of any information provided by another information content provider.”

In finding SexSearch immune under the law, U.S. District Judge Jack Zouhary cited Doe v. MySpace, 474 F. Supp. 2d 843 (2007), which held that a girl raped by a man she met on MySpace could not sue the social-networking website for failing to keep sexual predators from communicating with minors.

“In the present action, Plaintiff attempts to do the same thing as the plaintiffs in Doe v. MySpace and, in fact, comes right out and tells the Court his Complaint is artfully pled to avoid the CDA,” Zouhary said in his decision. “At the end of the day, however, Plaintiff is seeking to hold SexSearch liable for its publication of third-party content and harms flowing from the dissemination of that content.”

The 6th Circuit's refusal to address the Section 230 issue is puzzling since Zouhary only concluded that the law abrogates all claims against ISPs which are “directed toward the defendant in its publishing, editorial, and/or screening capacities” -- a conclusion that is widely supported in appellate case law.

The 5th Circuit, incidentally, affirmed Doe v. MySpace in May.

As Zouhary noted, the 6th Circuit has yet to interpret Section 230. With their decision in Doe v. SexSearch.com, Merritt and the two other judges on the panel –- conservatives Danny J. Boggs and Richard A. Griffin –- may have signaled that they have a restrictive view of its scope.

Doe's suit also alleged that SexSearch unconscionably limited its liability to the $29.95 value of gold membership. Upholding that clause, Merritt wryly noted that

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.

Doe was arrested in December 2005, but the charges of unlawful sexual conduct with a minor were later dismissed.

By Matthew Heller
12/31/08