9th Circuit: Rape Victim May Sue Model Mayhem

LOS ANGELES—In February 2011, two Florida men, one of whom was an adult performer, lured a woman to a fake audition via the popular modeling website Model Mayhem, after which they drugged and raped her, videotaping the crime for later distribution for profit via the internet. Today, a three-judge panel for the Ninth Circuit Court of Appeals ruled that the woman, known only as Jane Doe No. 14, can follow through on a failure-to-warn claim she filed against Model Mayhem's parent Internet Brands Inc. in California in April 2012. This was not the only such incident involving these two men, as AVN reported on at the time. Jane Doe had appealed the lower court ruling that sided with Model Mayhem's claim that it was protected from liability for the actions of the two men because of safe harbor provisions found in Section 230 of the Communications Decency Act, which states, in part, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." But the three judge panel—Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and Brian M. Cogan, District Judge—reversed and remanded the lower court's finding, ruling that the CDA "does not bar Jane Doe’s failure to warn claim," because "Jane Doe does not seek to hold Internet Brands liable as a 'publisher or speaker' 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 anything themselves." The panel also concluded, "Instead, Jane Doe attempts to hold Internet Brands liable for failing to warn her about how third parties targeted and lured victims through Model Mayhem. 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. Any obligation to warn could have been satisfied without changes to the content posted by the website’s users. Internet Brands 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 [defendants] Flanders and Callum. Posting or emailing such a warning could be deemed an act of publishing information," they add, "but section 230(c)(1) bars only liability that treats a website as a publisher or speaker of content provided by somebody else: in the words of the statute, 'information provided by another information content provider.'" More to the point, the panel concluded, "Jane Doe’s failure to warn claim has nothing to do with Internet Brands’ efforts, or lack thereof, to edit or remove user generated content. The theory is that Internet Brands should be held liable, based on its knowledge of the rape scheme and its 'special relationship' with users like Jane Doe, for failing to generate its own warning. Liability would not discourage 'Good Samaritan' filtering of third party content. The core policy of section 230(c), reflected in the statute’s heading, does not apply, and neither does the CDA’s bar." The panel also clarified, however, that despite reversing and remanding the lower court ruling, they had expressed no "opinion on the viability of the failure to warn allegations on the merits. We hold only that the CDA is not a valid basis to dismiss Jane Doe’s complaint." The Ninth Circuit ruling can be found here.