I Am Not a Lawyer

A blog post from Prof. Eric Goldman at the Technology & Marketing Law blog caught my eye yesterday. The professor was blogging on everyone’s favorite Internet law, 47 USC 230, which may or may not shield Web sites and other online platforms from liability for the bad behavior of their users. He’s discussing the Fifth Circuit’s opinion in Doe v. MySpace Inc., 2008 WL 2068064 (5th Cir. May 16, 2008).* In doing so, he mentions that the plaintiffs in this case tried to avoid a frontal assault on Sec. 230 by making an online premises liability claim.

Immediately, my metaphorical ears perked up. I write a lot of Web pages for trial attorneys, and of course, premises liability is a common subject. But I’ve never heard of online premises liability before. Could my clients, Internet-savvy though they are, be missing a big opportunity to expand their practice areas? Lucky for me, Prof. Goldman linked to a post from about two years ago that explores the issue a bit. On the one hand, there’s an easily foreseeable risk of harm. On the other hand, this would be burdensome and possibly even impossible for sites like MySpace. The only semi-effective way I’ve ever seen to verify a user’s age is to have him or her input a credit card number, and that would cut out thousands or even millions of potential MySpace users. Plus credit card ownership/access is still not a very good proof of age. Whoever invents a better way (could you license driver’s license info from state governments?) will quickly become rich.

In the meantime, caselaw is sparse, at least according to that two-year-old post, but seems to come down on the side of defendants. So perhaps that’s why trial lawyers aren’t big into online premises liability. I’m sure it could succeed in a trial court somewhere, but I suspect most appellate judges would lay a smackdown pretty fast, for the reasons above.

* As someone who’s never been to law school, I’m almost helpless when it comes to citations; I almost always copy and paste them from things written by lawyers. My former workplace, the LA Daily Journal, had a pretty good guide that I now wish I had kept. If anyone can recommend an authoritative guide (meaning not Wikipedia), I’d be happy to spend money on it.