TEACHERS SHOULD BE AWARE THAT THIS CASE INVOLVES SENSITIVE SUBJECT MATTER RELATING TO SEXUAL EXPLOITATION OF MINORS ON THE INTERNET. TEACHERS SHOULD MAKE AN INDEPENDENT DETERMINATION AS TO THE APPROPRIATENESS OF THIS SUBJECT. TEACHERS SHOULD ALSO EXERCISE CAUTION IN ALLOWING STUDENTS ACCESS TO THE INTERNET.
In 1994, Richard Russell lured John Doe (not his real name), then eleven years old, and two other minor males to engage in sexual activity with each other and with Russell in West Palm Beach. Russell then photographed and videotaped these activities and used an America Online (AOL) "chat room" to offer for sale the photos and videotapes of John Doe and the other minors. He did not transmit visual images of Doe or the other minors on Internet. He sold one of the videotapes to a man in Arizona. In 1997, John Doe's mother, Jane Doe (not her real name), sued Russell and AOL and asked the court to order Russell and/or AOL to pay her and her son $8 million to compensate them for their emotional injuries.
In her civil suit seeking a money judgment, Jane Doe claimed that AOL had committed civil negligence because it violated a Florida criminal law, section 847.011(1)(a), Florida Statutes (1995), by knowingly allowing and permitting Russell "to sell, distribute, transmit or offer to sell, distribute or transmit photographs and videotape containing the images of the minor Plaintiff, John Doe, which were unlawful and obscene."
Jane Doe also alleged that AOL was negligent because it violated section 847.0135(2), Florida Statutes (Computer Pornography and Child Exploitation Prevention Act of 1986), by allowing Russell to distribute an advertisement offering "a visual depiction of sexual conduct involving [John Doe]" and by allowing Russell to sell child pornography, thus aiding in the sale and distribution of child pornography.
Jane Doe claimed that AOL was negligent because AOL knew, or should have known, that Russell and others like him used AOL to market and distribute child pornographic materials, that it should have used reasonable care in its operation, that it breached its duty, and that the damages to John Doe were reasonably foreseeable as a result of AOL's breach. (Doe also sued Russell, but that lawsuit is not an issue in this Supreme Court case. Russell is presently serving lengthy federal and state prison sentences arising out of events relating to those alleged in Doe's lawsuit. Russell pled guilty and was convicted on federal criminal charges of sexual exploitation of children and transportation of sexually explicit material involving a minor and state criminal charges of attempted capital sexual battery.)
Doe also alleged that AOL provided "Terms of Service" ("TOS") and "Rules of the Road" ("ROR") and required its members to comply with these terms. She claimed that the TOS and ROR prohibited members from posting or transmitting "unlawful, harmful . . . obscene . . . or otherwise objectionable" material on AOL, including material encouraging criminal conduct. She also claimed that AOL reserved the right to monitor the public areas and chat rooms to ensure that members adhered to the TOS and ROR and reserved the right to "prohibit conduct, communication, or content which it deems in its discretion to be harmful to individual members, the communities which make up the AOL Service, AOL, INC.'S or other third party rights or to violate any applicable law."
Jane Doe claimed that complaints had been communicated to AOL as to Russell's transmitting obscene and unlawful photographs and/or images. She argued that, although AOL reserved the right to terminate, without notice, the service of any member who did not abide by the TOS, AOL did not warn or advise Russell to stop, nor did it suspend or terminate his service. Doe did not allege that Russell transmitted photographs or images of her son.
AOL asked the trial court to dismiss Doe's complaint, arguing that AOL has immunity from this lawsuit under a federal statute, 47 U.S.C. § 230, the Communications Decency Act (CDA), which prohibits lawsuits that treat the provider of an interactive computer service as the "publisher or speaker" of messages transmitted over its service by third parties.
The trial court concluded that the immunities provided by section 230 of the CDA applied to Doe's claims and granted AOL's motion to dismiss. Doe v. America Online, Inc., 718 So. 2d 385 (Fla. 4th DCA 1998). The Fourth District Court of Appeal affirmed and held that the trial court's conclusion was consistent with Zeran v. America Online, Inc., 129 F. 3d 327 (4th Cir. 1997), in which the federal circuit court held that "Congress' desire [in enacting 47 U.S.C. § 230] to promote unfettered speech must supersede conflicting common law causes of action." Id. at 334. Florida's Fourth District Court of Appeal certified to this Court three questions of great public importance, including the following question:
WHETHER A COMPUTER SERVICE PROVIDER WITH NOTICE OF A DEFAMATORY THIRD PARTY POSTING IS ENTITLED TO IMMUNITY UNDER SECTION 230 OF THE COMMUNICATIONS DECENCY ACT?
The Florida Supreme Court accepted jurisdiction of this case pursuant to article V, section 3(b)(4) of the Florida Constitution, and oral argument is set for September 1, 1999. Jane Doe and AOL are represented by attorneys from separate private law firms.
For a more detailed explanation of the issues in this case, review the briefs of the attorneys in this case:
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