III. Doe v. SexSearch.com

A. The Scandal

In October of 2005, John Doe registered as a gold member of SexSearch.com (“SexSearch”), a “website offering an online adult dating service which encourages its members to meet and engage in sexual encounters.”58 The website permits members to create profiles by answering specific questions provided by the site and also gives them the option of uploading photos and video content to be seen by other members.59 Shortly after he joined, Doe came across the user-created profile of Jane Roe, a fourteen-year-old girl who represented herself as an eighteen-year-old woman.60 She used an actual photo of herself and said she was looking for a man “who could last for a long time.”61 On November 15, 2005, the two met at Roe's house and engaged in consensual sexual relations.62 Later, on December 30, 2005, Doe was arrested and charged with three third-degree felony counts of unlawful sexual conduct with a minor.63 Conviction would result in as much as fifteen years in prison and lifetime registration as a sex offender.64

Following his arrest, John Doe brought suit against SexSearch based on fourteen different claims that “essentially boil[ed] down to either (a) [d]efendants failed to discover Jane Roe lied about her age to join the website, or (b) the contract terms [were] unconscionable.”65 The defendants asserted immunity from claims that “would render [an ICS] liable for content provided by third parties.”66 They argued thus that “the CDA bars [Doe's] claims based on the purported failure of the website to prevent Jane Roe from misrepresenting her age.”67 Doe argued, however, that the website did not qualify for such protection because the site “reserve[d] the right, and [did] in fact, modify the content of profiles when they do not meet the profile guidelines and as such they [were] responsible in whole or part for the creation or development of the information.”68

B. The Opinion

The United States District Court for the Northern District of Ohio held in Doe v. SexSearch.com that all claims related to SexSearch's “failure to remove Jane Roe's profile, or their failure to prevent John Doe from communicating with her,” fell within the scope of CDA § 230.69 In other words, it found SexSearch immune to all these claims.

The court began by following the conventional § 230 analysis for ICS immunity for third-party information.70 Specifically, the court relied on § 230(c)(1) in holding 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.”71 Therefore, the critical determination for the court was whether SexSearch was considered an ICP, qualifying for immunity under § 230(c)(1), rather than the publisher of the information. The court framed three requirements that had to be met for SexSearch to qualify for immunity as an ICP: “(1) SexSearch is a provider of an 'interactive computer service'; (2) the claim is based on 'information provided by another information content provider'; and (3) the claim would treat SexSearch 'as publisher or speaker' of that information.”72

The court quickly found that SexSearch satisfied the first requirement, holding that SexSearch was in fact an ICS under the statute as it “function[ed] as an intermediary by providing a forum for the exchange of information between third party users.”73 It elaborated on its reasoning in determining whether the last two requirements were met.74

To support his argument that SexSearch should be considered an ICP of Jane Roe's false profile, Doe cited Anthony v. Yahoo!, Inc.,75 in which an ICS76 was held not to qualify for immunity under the CDA because it “deliberately 'create[d] false profiles.' ”77 The court in SexSearch.com, however, distinguished the case by noting that SexSearch would have to be the ICP with respect to the specific false information that Doe relied on in order to lose its immunity.78 In other words, SexSearch would have had to proactively modify Jane Roe's profile to be considered its ICP, something Doe did not allege.79 Further, the court stated that “the mere fact SexSearch provided the questionnaire Jane Doe answered falsely is not enough to consider SexSearch the developer of the false profile.”80 This statement directly calls into question the reasoning put forth in Roommates.com,81 in which the website's questionnaire seeking a directed response was seen as a reason to consider the website an ICP with respect to the harmful information.82

Finally, the court also considered Doe's argument that the claims brought against SexSearch did not arise from its role “as a publisher.”83 According to Doe, immunity provided by the CDA should apply only to a defamation claim, something that was not part of the SexSearch.com action.84 The court did not find this argument persuasive, however, because the statute does not contain such constricting language, and federal appellate court precedents from other circuits85 have not restricted immunity in such a manner.