Wednesday, Dec 31, 2008    Text size: 

A 6th U.S. Circuit Court of Appeals three-judge panel dismissed Doe’s 14-count appeal on Tuesday, ruling “the danger that a member of SexSearch could be a minor is open and obvious” and that his case failed to state legitimate claims.

Doe said he was tricked into believing that a minor he met on SexSearch was over the age 18 because she posted information that stated such and that the online company represented to him that it verifies the age of all members who use their site.

The ruling is of significant interest to online adult businesses because the decision amplifies the necessity for Internet companies to warn customers that users they meet online could be fabricating information, particularly their ages.

“Internet users’ anonymity and potential for false personal representations are well known,” Chief Judge Gilbert Merritt wrote for the court. “Doe was familiar with the registration process and knew that SexSearch did nothing more than asking members to check a box indicating that they are at least 18. Furthermore, even if there was a duty to warn, the statement in the 'terms and conditions' that SexSearch could not verify members’ information could be seen as a satisfaction of that duty.”

More than a month after having consensual intercourse with the 14-year-old minor at her home, Doe was arrested and charged with unlawful conduct with a minor. The minor, whose profile was active on SexSearch until it was removed by her parents, included her photo on the site, as well as listings that said she was looking for a “1 on 1 sexual encounter” and that her ideal match included her interest in a male “who can last for a long time.”

Doe, whose civil case was tossed by U.S. District Judge Jack Zouhary last year, had his criminal case dismissed, which could have meant a 15-year prison term.

In his original complaint against SexSearch, Doe claimed that the arrest and prosecution — and the publicity that accompanied them — caused lasting harm to his reputation, family life and employment prospects.

He later appealed the civil case all the way to the 6th Circuit, which has jurisdiction of federal appeals in Ohio, Tennessee, Kentucky and Michigan.

Doe's suit also alleged that SexSearch unconscionably limited liability to the $29.95 value of its "gold" membership.

"Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless," Merritt wrote. "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."

SexSearch attorney Colin Hardacre, of Los Angeles-based Kaufman Law Group, told XBIZ that the appeal to the 6th Circuit was rather weak and doubted Doe would ask for the court’s full panel to rehear the case or a possible challenge at the U.S. Supreme Court.

“It’s the case of everyone saying ‘you’re done,’” Hardacre said. “If you want to challenge the 6th Circuit’s decision, we’d say ‘bring it on.’”

In the federal appeal, the 6th Circuit said that it agreed with the lower court decision that dismissed all 14 counts for failure to state a claim.

Failure to state a claim is frequently raised as a defense in civil litigation. It asserts that, assuming all the allegations in the plaintiff’s complaint are true, the complaint nevertheless does not establish a cause of action, or a combination of facts that gives a person the right to seek judicial relief against another.

But the court didn’t reach the question of whether the Communications Decency Act provides SexSearch with immunity from suit, Hardacre said.

Section 230 of the CDA distinguishes between an Internet service provider and an Internet content provider, holding that no ISP “shall be treated as the publisher or speaker of any information provided by another information content provider.”

“I knew from the justices’ comments and questions during argument that they were not enamored with the U.S. District Court’s interpretation of the CDA,” Hardacre said.

In finding SexSearch immune under the law, lower-court judge Zouhary cited Doe vs. MySpace, 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 vs. MySpace and, in fact, comes right out and tells the court his complaint is artfully pled to avoid the CDA,” Zouhary wrote 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.”

Zouhary noted in the lower-court opinion that the 6th Circuit has yet to interpret Section 230.

SexSearch attorney Gary Kaufman, who argued the case before the 6th Circuit in October, said the win was a solid one for Cytek Ltd., the owner of SexSearch.

“This was a terrific victory for our clients,” Kaufman said. “They stood their ground and defended themselves against this shakedown, rather than pay off like a slot machine, as so many companies out there do.

"Hopefully this sends the message to anyone contemplating a payday from our clients that they are in for a knock-down drag-out fight — we do not represent pushovers.”

Plaintiff’s attorneys Dean Boland and Brandie Hawkins did not return phone calls for comment to XBIZ by post time.