What a sad story that an email sent by Josh Evans (who did not exist) led to the suicide of Morgan Meier (a 13 year old). Actually Josh Evans’ emails were sent by Lori Drew, the mother of a former friend of Morgan, who “cyberbullied” Megan with a make-belief identity. How tragic for Morgan’s family and after a trial, a federal court jury found that Lori Drew committed a crime, but it will not end here. In December the federal judge will consider motions to set aside the verdict. Depending on what the federal judge does, this may continue in the appellate courts for some time to come.

Will Failure to Read the Terms of Service be a Defense?

Lori Drew’s attorney has filed motions to set aside the verdict because she did not read the MySpace Terms of Service which obligates users to provide “truthful and accurate” registration information. Prosecutors alleged that Drew’s phony profile was unauthorized access and a violation of the Computer Fraud and Abuse Act of 1986. That law was created to protect violations of federal and bank computers, and has been expanded to include most computers and the Internet.

How do Courts View Terms of Service?

Generally most courts tend to accept the Terms of Service (or Terms of Use) for a website as a binding agreement even though few individuals ever read them. Terms of Service are most often found below the fold of the front page of most websites…Google does not even have a Terms of Service on its front page. But courts rely on the fact that users have a choice to use the website and so should realize they are bound to whatever the website says the Terms of Use are. As we all know many websites also require a “Browse-Wrap Agreement” which asks the user to “Click Agree.” Virtually everyone does “Click Agree” without reading a single word of the “Browse-Wrap Agreement.” So it will be interesting to see how Lori Drew’s failure to read MySpace’s Terms of Use will be any kind of defense.

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