For the last few months I’ve been pretty critical of MySpace. I love the concept of the site, especially in that aspiring musicians (like myself) get a free audience to share songs with, but I see some real problems with the stated policy of allowing 14-year-olds to post personal information.

Given that many predators have used the site to find victims, I’ve argued that to protect children, the government might take some action to stop underage information-sharing (though this could face First Amendment challenges).

MySpace’s policy isn’t illegal, but it might cost them via a civil suit:

“The law firms…said families from New York, Texas, Pennsylvania and South Carolina filed separate suits Wednesday in Los Angeles Superior Court, alleging negligence, recklessness, fraud and negligent misrepresentation by the companies.

“‘In our view, MySpace waited entirely too long to attempt to institute meaningful security measures that effectively increase the safety of their underage users,’ said Jason A. Itkin, an Arnold & Itkin lawyer.”

As much as I’d like to see improvements to MySpace safety, this is not the way it should happen. Unfortunately, there’s a big gap between what I think is right and what very well could result from this lawsuit.

Some background on the cases, from the story:

“The lawyers…said the plaintiffs include a 15-year-old girl from Texas who was lured to a meeting, drugged and assaulted in 2006 by an adult MySpace user, who is currently serving a 10-year sentence in Texas after pleading guilty to sexual assault.

“The others are a 15-year-old girl from Pennsylvania, a 14-year-old from New York and two South Carolina sisters, ages 14 and 15.

“Last June, the mother of a 14-year-old who says she was sexually assaulted by a 19-year-old user sued MySpace and News Corp., seeking $30 million in damages. That lawsuit, filed in a Texas state court, claims the 19-year-old lied about being a senior in high school to gain her trust and phone number.”

First of all, in a right-and-wrong sense, this lawsuit is bunk. The parents’ audacity is especially offensive — at the least they were unable to detect their children’s lies, and at the worst they didn’t bother to find out where their kids were and who the kids were with. If MySpace is allowing 14-year-olds on the site, the companies should keep it clean enough for 14-year-old eyes. But once a kid logs off and goes to meet a guy she found online, it’s no longer the Web site’s fault.

That said, the legal aspect to the case could pose problems for MySpace. The main complaint is negligence; the other three look harder to prove, though I’m no lawyer.

According to WIkipedia, a negligence claim requires duty, breach of duty, causation and damage. The causation and damage are about given — the MySpace meetings caused the assaults, and assaults, well, cause damage.

The big questions are (A) whether MySpace has a duty to users once they log off and (B) whether MySpace did not meet that duty.

Again, I think a Web site’s duty ends at log-off. But the law looks at “reasonably foreseeable harm” (a notion most annoying in the “attractive nuisance” principle, which holds that if a child trespasses on my property and gets hurt, I can be sued, presuming my property contained a pool or something else a child might like).

Is it reasonably foreseeable that a huge, well-funded Web site might attract some pedophiles to prey on the 14-year-olds it explicitly invites? Yes. By law, then, said Web site should take steps to stop that, just like I have to take steps to stop trespassing kids from drowning in my pool.

The question turns to, did MySpace breach that duty? It’s true that the site has made some efforts to protect users. From the story:

“MySpace has…added educational efforts and partnerships with law enforcement. The company has also placed restrictions on how adults may contact younger users on MySpace, while developing technologies such as one announced Wednesday to let parents see some aspects of their child’s online profile, including the stated age. That tool is expected this summer.”

Too little, too late? A subjective call, and sexually assaulted young teens make compelling witnesses.

The bottom line is that the parents failed in their duty to watch their kids. MySpace is a business, not a parent, and as such shouldn’t have to worry about anything but making a great site. But years and years of American law hold that everyone has a duty to actively protect children, even when said children are doing things they shouldn’t be.

Robert VerBruggen blogs at http://www.therationale.com.