Model Mayhem – The Communications Decency Act is Not a Defense to Negligent Failure to Warn Claim

One of the primary purposes of the Communications Decency Act (“CDA”) is to limit liability for certain internet content providers specifically protecting websites from liability for material posting on their website by a third party. In Jane Doe No. 14 v. Internet Brands, Inc., the operator of a networking site in the modeling industry sought to use the CDA as a defense to a negligence claim based on a failure to warn.  The facts of the case are horrific.

Jane Doe was an aspiring actress who posted her information on the networking site  In February 2011, she was contacted by two men Lavont Flanders and Emerson Callum, about a modeling audition in Florida.  Jane Doe traveled to Florida to meet with the two men and was given a drug that caused her to pass out after which she was raped and the assault made into a pornographic film.   (Flanders and Mr. Callum were convicted of numerous crimes by a federal jury in Florida and sentenced to life in prison for this and other similar assaults.)

Jane Doe claimed that the owner of the website, Internet Brands, Inc. knew of the two men’s unlawful conduct but took no steps to warn her or other users of the threat.  Prior to the 2011 assault, Internet Brand, which had purchased the Modelmayhem site in 2008, had apparently sued the seller of the site in 2010 for failing to disclose the potential civil liability arising from the criminal deeds of Callum and Flanders.  She brought a claim against Internet Brands, Inc. for negligence under California law which recognizes a cause of action for failure to warn. Internet Brands moved to dismiss the claim asserting that the CDA immunized it from liability as to Jane Doe’s claims.  The trial court agreed and dismissed the complaint.  Jane Doe appealed to the Ninth Circuit which reversed the trial court’s decision in an opinion dated September 17, 2014.

The Ninth Circuit framed the issue as “whether the CDA bars Jane Doe’s negligent failure to warn claim under California law” and began by looking at the text of the CDA, specifically sections 230(c)(1) and (2).  The Court found that section 230(c)(1) of the CDA “precludes liability that treats a website as the publisher or speaker of information users provide on the website.  In general, this section protects websites from liability for material posted on the website by someone else.”

The Ninth Circuit reasoned that this protection from liability applies “even though the website proprietor has not acted to remove offensive content posted by others.”  However, the Court concluded that Jane Doe’s claim was different from the general claim that would otherwise be barred by the CDA.  Specifically, the Court found that she did not seek “to hold Internet Brands liable as a `publisher or speaker’ of content someone posted on the Modelmayhem website” or that it failed to remove such content.  Neither Flanders nor Callum were alleged to have posted any materials themselves.  (They apparently contacted Jane Doe about the alleged audition through the Modelmayhem website using a fake identity.)  Jane Doe’s complaint sought to hold Internet Brands liable because it has failed to warn her that these individuals had used the website to target other potential victims.

Internet Brands claimed that requiring it to post or email a warning would be deemed an act of publishing information and would otherwise fall within the protections of the CDA.  The Ninth Circuit rejected this argument.  It held that such a posting or email by Internet Brands “would involve only content that Internet Brands itself produced” and that therefore a tort based on a duty that would require such a self-produced warning therefore falls outside of section 230(c)(1).”  Essentially, the Court found that plaintiff was not seeking to hold Internet Brands liable for publishing information provided by another information content provider.

The Ninth Circuit continued by recognizing that the purpose of CDA supported this conclusion.  One of the purposes of the CDA was to allow the operator of a website “to self-regulate offensive third party content without fear of liability.”  The Court concluded that this policy was not implicated by allowing plaintiff’s failure to warn claim to proceed.  It concluded that the claim was based on the theory “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 Court then turned its attention as to the other policy of the CDA which was to “avoid the chilling effect upon internet free speech that would be occasioned by the imposition of tort liability upon companies that do not create potentially harmful messages but are simply intermediaries for their delivery.”  The Court acknowledged that Internet Brands was an “intermediary” between Jane Doe and the rapists but that there was no allegation that modelmayhem itself transmitted any potentially harmful messages.  For instance, there was “no allegation that Flanders or Callum posted their own profiles on the website.”   The Court said that although it could be argued that imposing liability on Internet Brands in this matter could be said to have a “chilling effect” on the internet, it reasoned that “the CDA does not declare `a general immunity from liability deriving from third party content’.”  Specifically, the Court found that “Congress has not provided an all-purpose-get-out-of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses.”

The Court concluded that although the case presented a “novel issue,” it found that the CDA did not bar a state law based failure to warn claim.  The Court emphasized that it was expressing “no opinion on the viability of the failure to warn allegations” but only that “the CDA is not a valid basis to dismiss Jane Doe’s complaint.”

Although it remains to be seen as Jane Doe’s case progresses whether she will be able to establish liability on the part of Internet Brands, the Ninth Circuit’s ruling is a reminder to content providers on the internet that there are some limits to the scope of immunity protection provided by the CDA.