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3 Questions After Model Mayhem's CDA Sec. 230 Immunity Denial

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By William Peacock, Esq. on September 19, 2014 3:47 PM

From 2006 to 2011, Emerson Callum and Lavont Flanders posed as talent scouts on ModelMayhem.com, a social network for aspiring models. The duo would lure women to Miami under false pretenses, then drug and sexually assault them on tape, marketing the videos as pornography. Both were eventually convicted and received life sentences.

In 2008, Internet Brands purchased ModelMayhem.com from its founders. Two years later, the company sued the founders for failing to disclose the potential for liability for civil suits due to the two rapists' actions. And yet, IB posted no warnings. In 2011, Jane Doe became another one of their victims.

She sued IB under California law, alleging a violation of the state's "duty to warn" (the Tarasoff duty). The district court dismissed the suit, holding that Section 230 of the Communications Decency Act provided immunity for online service providers over content posted by third parties.

Yesterday, the Ninth Circuit reversed, essentially holding that the CDA had nothing to do with Doe's claims whatsoever.

CDA Immunity Limited?

Many are saying that this case delineates the limits of how far CDA immunity stretches. Cases where third parties post harmful gossip are clearly covered by the CDA. And a recent case out of the Sixth Circuit extended immunity to a site where third-party content was posted alongside the site owner's own comments: the infamous TheDirty.com case.

But here, the Ninth Circuit noted that the speech or third-party content itself wasn't the issue -- Doe was suing over the site's failure to warn her of a known danger, not over the actual messages from the two rapists:

"[S]ection 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.' ... A post or email warning that Internet Brands generated would involve only content that Internet Brands itself produced. An alleged tort based on a duty that would require such a self-produced warning therefore falls outside of section 230(c)(1)."

Claim Doomed Either Way?

The Ninth Circuit carefully noted, twice, that it expressed no opinion on the merits of Doe's "duty to warn" tort, the Tarsoff claim (codified at Cal. Civ. Code § 43.92).

Such a duty depends on a "special relationship" with either the culprit or the foreseeable victim. Tarasoff was the law school mainstay case where a therapist failed to warn the eventual victim about his client's expressed desire to murder the woman who rejected his advances. Doe claims that ModelMayhem.com has such a relationship with its users, and more specifically, with her -- a novel theory that may have some trouble succeeding when the case returns to the district court.

Circuit Split?

After reading the Ninth Circuit's opinion, a nagging doubt lingered -- haven't I read this before?

Ah wait, where there is rape, there was MySpace. A quick search turned up a 2008 case out of the Fifth Circuit, where that court held that the CDA barred a similar tort-based negligence claim due to the site's failure to protect a 13-year-old posing as an 18-year-old who was sexually assaulted by a 19-year-old. (A bit convoluted, we know.)

The Fifth Circuit held that no matter how "artfully" the case was pleaded, it all came back to relying on third-party communications via an Internet service provider, exactly what the CDA was meant to cover:

"It is quite obvious the underlying basis for Plaintiffs' claim is that through posting on MySpace, Pete Solis and Julie Doe met and exchanged personal information which eventually led to an in-person meeting and sexual assault... If MySpace had not published communications between Doe and Solis... they never would have met and the sexual assault never would have occurred. No matter how artfully Plaintiffs seek to plead their claims, the court views Plaintiffs' claims as directed toward MySpace in its publishing, editorial, and/or screening capacities."

Another interesting cite to chew on: A California appeals court, citing that Fifth Circuit case, came to the same conclusion in four consolidated minors-assaulted-on-MySpace cases, ruling that CDA immunity applies.

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