Ninth Circuit says “Failure to Warn” Action Against Website that Allegedly Faciliated Rape Not Barred By Section 230 of the CDA

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From the opinion:

“Model Mayhem is a networking website, found at modelmayhem.com, for people in the modeling industry. Plaintiff Jane Doe, an aspiring model who posted information about herself on the website, alleges that two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video. She also alleges that Defendant Internet Brands, the company that owns the website, knew about the rapists but did not warn her or the website’s other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn. The district court dismissed the action on the ground that her claim was barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c) (2012). We conclude that the CDA does not bar the claim. We reverse and remand for further proceedings.”

Read the full opinion here.

One press account notes:

…Summarizing that history for a three-judge appellate panel Wednesday, Judge Richard Clifton noted that the law generally “protects websites from liability for material posted on the website by someone else,” In reviving the case of an aspiring model named in the court record only as Jane Doe, however, Clifton noted that her “claim is different.”

Doe sued Internet Brands Inc. dba ModelMayhem.com in Los Angeles for negligent failure to warn.

She said the company knew but failed to warn users that two men, Lavont Flanders and Emerson Callum, would scan the website to lure victims to the Miami area for bogus modeling auditions, then drug them, rape them and film it to make a porno.

The 9th Circuit found Section 230(c)1 inapplicable Wednesday because Doe does not seek to hold Internet Brands liable as the publisher “of content someone posted on the Model Mayhem website, or for internet Brands’ failure to remove content posted on the website.”

“Flanders and Callum are not alleged to have posted on the website,” the decision continues. Doe instead alleges only that her attackers contacted her through the site by using a fake identity. She seeks to hold the company liable for failing to warn her about how the men used the website to lure in rape victims.

“The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes such content,” Clifton wrote. “Any obligation to work could have been satisfied without changes to the content posted by the website’s users.”

The company “would simply have been required to give a warning to Model Mayhem users, perhaps by posting a notice on the website or by informing users by email what it knew about the activities of Flanders and Callum,” he added.

“Barring Jane Doe’s failure to warn claim would stretch the CDA beyond its narrow language and its purpose,” the 13-page ruling continues. “To be sure, Internet Bands acted as the ‘publisher or speaker’ of user content.”

The judges also emphasized that the company has “specifically denied substantially all of the allegations, including that the assailants contacted plaintiffs through the website.” …

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