Friday, October 10, 2014

The CDA, the Website and Rape

This post examines a recent decision from the U.S. Court of Appeals for the 9th Circuit that addressed the scope of the immunity established by the Communications Decency Act of 1996 (CDA), 47 U.S. Code §230(c)(1).  Doe No. 14 v. Internet Brands, Inc., 2014 WL 4627993.  As Wikipedia explains, § 230 of the CDA
added protection for online service providers and users from actions against them based on the content of third parties, stating in part that "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". Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.
Jane Doe sued Internet Brands based on events the Court of Appeals outlines at the beginning of its opinion:
Plaintiff alleges that Internet Brands owns and operates the website, which it purchased in 2008. Model Mayhem is a networking site for professional and aspiring models to market their services. It has over 600,000 members. Plaintiff Jane Doe, a fictitious name, was an aspiring model who became a member of Model Mayhem.

Unbeknownst to Jane Doe, . . . Lavont Flanders and Emerson Callum, were using Model Mayhem to identify targets for a rape scheme, allegedly as early as 2006. Flanders and Callum are not alleged to have posted their own profiles on the website. Instead, they browsed profiles on Model Mayhem posted by models, contacted potential victims with fake identities posing as talent scouts, and lured victims to south Florida for modeling auditions. Once a victim arrived, Flanders and Callum used a date rape drug to put her in a semi-catatonic state, raped her, and recorded the activity on videotape for sale and distribution as pornography.

In 2008, Internet Brands purchased Model Mayhem from Donald and Taylor Waitts, the original developers of the site. Shortly after the purchase, Internet Brands learned of how Flanders and Callum were using the website. In August 2010, Internet Brands sued the Waitts for failing to disclose the potential for civil suits arising from the activities of Flanders and Callum. By that time, according to Jane Doe, Internet Brands knew that Flanders and Callum had used Model Mayhem to lure multiple women to the Miami area to rape them.

In February 2011, Flanders, pretending to be a talent scout, contacted Jane Doe, in the words of the Complaint, `through Model Mayhem.’ Jane Doe went to south Florida for a purported audition, where Flanders and Callum drugged, raped, and recorded her.
Doe No. 14 v. Internet Brands, Inc., supra.
Doe brought this action in federal court – specifically the U.S. District Court for the Central District of California – pursuant to the court’s diversity jurisdiction.  Doe No. 14 v. Internet Brands, Inc., supra.  As Wikipedia explains, under U.S. law “diversity jurisdiction is a form of subject-matter jurisdiction . . . in which a United States district court in the federal judiciary has the power to hear a civil case where the . . . parties are `diverse’ in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens.”  A U.S. District Court’s diversity jurisdiction derives from Article III § 2 of the U.S. Constitution, which states that the nation’s “judicial Power” shall
extend to all Cases . . . arising under this Constitution, the Laws of the United States, . . . to Controversies to which the United States shall be a Party;—to Controversies between . . . between a State and Citizens of another State; [and] between Citizens of different States. . . .
Congress implemented the grant of judicial power to cases involving citizens of different states in 28 U.S. Code § 1332.  And, as the opinion explains, Jane Doe filed this suit
against Internet Brands in the Central District of California, where Internet Brands is based, asserting one count of negligent failure to warn under California law. She alleges that Internet Brands knew about the activities of Flanders and Callum but failed to warn Model Mayhem users that they were at risk of being victimized. She further alleges that this failure to warn caused her to be a victim of the rape scheme.
Doe No. 14 v. Internet Brands, Inc., supra.
Doe’s cause of action – failure to warn – arises from tort law.  As Wikipedia notesa tort, “in common law jurisdictions, is a civil wrong that unfairly causes someone . . . to suffer . . . harm resulting in legal liability” for the person who is wholly partially responsible for that harm.  Negligence” is a tort that “arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person.”  
In this case, based on a brief Jane Doe filed on appeal, her theory of liability was that when someone who
stands in some `special relationship’ to the foreseeable victim of particular criminal conduct, a duty to warn may arise.  Isaacs v. Huntington Memorial Hospital, 38 Cal. 3d 112, 211 Cal. Rptr. 356 (California Supreme  Court 1985). . . . For example, a business - invitee relationship is a recognized `special relationship’ which may give rise to a duty of care. Isaacs v. Huntington Memorial Hospital, supra.  Liability is appropriate . . . where the business has reasonable cause to anticipate criminal acts against its invitees and the probability of injury resulting therefrom. . . .  Isaacs v. Huntington Memorial Hospital, supra. `Conduct is negligent where some unreasonable risk of danger to others would have been foreseen by a reasonable person’. Robison v. Six Flags Theme Parks Inc., 64 Cal. App. 4th 1294, 75 Cal. Rptr. 838 (California Court of Appeals 1998).

Here, members were in the nature of business invitees of Internet Brands. In the extraordinary circumstances of this case, Internet Brands became aware of a `specifically foreseeable’ danger to its female members of being drugged and raped in a very particular scheme operated by two persons, Flanders and Callum, whom Internet Brands knew had victimized multiple female members of . . .  Internet Brands even brought a civil suit against the seller of for failure to disclose its potential civil liability to the victims of the Flanders-Callum scheme. . . . [T]hese facts and circumstances support a duty to warn in this case owed by Internet Brands to its targeted members.
Reply Brief of Appellant, Doe v. Internet Brands, Inc., 2013 WL 1887096. 
Internet Brands may have/(probably did) argue in its brief(s) that they in fact did not have such a duty, but that was not the tactic that led the U.S. District Court Judge who had the case to dismiss it.  As the Court of Appeals explained,
Internet Brands filed a motion to dismiss the action under Federal Rule of Civil Procedure 12(b)(6), on the ground that her claim was barred by the CDA. The district court granted the motion to dismiss and dismissed the action with prejudice. It denied leave to amend the complaint on the ground that any amendment would be futile. Jane Doe appeals.
Doe No. 14 v. Internet Brands, Inc., supra.  So, the issue the Court of Appeals is addressing is the CDA immunity issue.
The Court of Appeals began its analysis of the issue by explaining that § 230(c)(1) states that “[n]o 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.”  Doe No. 14 v. Internet Brands, Inc., supra.  Section 230(c)(2) then states that no provider or user of an interactive computer service shall be held liable on account of
(A) any action voluntarily taken in good faith to restrict access to or availability of material the provider or user considers to be obscene, lewd, lascivious, . . . excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Doe No. 14 v. Internet Brands, Inc., supra. 
The court goes on to explain that an “information content provider” is,
under [47 U.S. Code §] 230(f)(3), `any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.’ Thus, section 230(c)(1) 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.
Doe No. 14 v. Internet Brands, Inc., supra. 
It also explained that under § 230(c)(1), the protection applies
even though the website proprietor has not acted to remove offensive content posted by others. For example, this court has held the CDA barred a negligent undertaking claim against a website that failed to remove an offensive profile posted on the website by the victim's ex-boyfriend. Barnes v. Yahoo!, Inc., 570 F.3d 1096 (U.S. Court of Appeals for the 9th Circuit 2009). Such liability, the court explained, would `treat’ the website as the `publisher’ of user content because `removing content is something publishers do’ and to permit liability for such conduct `necessarily involves treating the liable party as a publisher of the content it failed to remove.’ Id.
Doe No. 14 v. Internet Brands, Inc., supra. 
The court, though, found that Jane Doe’s claim is
different. . . . She 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 Complaint alleges only that `JANE DOE was contacted by Lavont Flanders through MODELMAYHEM.COM using a fake identity.’ Jane Doe also does not claim to have been lured by any posting that Internet Brands failed to remove.

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 Flanders and Callum.
Doe No. 14 v. Internet Brands, Inc., supra. 
It went on to find that posting or emailing such a warning could be
deemed an act of publishing information, but section 230(c)(1) bars only liability that treats a website as a publisher or speaker of content provided by somebody else. . . . 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). In sum, Jane Doe's negligent failure to warn claim does not seek to hold Internet Brands liable as the `publisher or speaker of any information provided by another information content provider.’ Id. As a result, we conclude that the CDA does not bar this claim. . . .

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.
Doe No. 14 v. Internet Brands, Inc., supra. 
Next, the Court of Appeals explained that “[b]arring” Jane Doe’s failure to warn
claim would stretch the CDA beyond its narrow language and its purpose. To be sure, Internet Brands acted as the `publisher or speaker’ of user content by hosting Jane Doe's user profile on the Model Mayhem website, and that action could be described as a `but-for’ cause of her injuries. Without it, Flanders and Callum would not have identified her and been able to lure her to their trap. That does not mean the failure to warn claim seeks to hold Internet Brands liable as the `publisher or speaker’ of user content, however. Publishing activity is a but-for cause of just about everything Model Mayhem is involved in. It is an internet publishing business. Without publishing user content, it would not exist. . . .

[H]owever, we held in Barnes v. Yahoo!, Inc., 570 F.3d 1096 (2009) that the CDA does not provide a general immunity against all claims derived from third-party content. . . .
Doe No. 14 v. Internet Brands, Inc., supra. 
Finally, the court noted that both sides analyzed other cases involving CDA immunity in the briefs they filed with the court, but that was not helpful here because the
key factors discussed in prior cases are not present here. The purported tort duty does not arise from allegations about mishandling the removal of third party content. . . . There is in our case no employer-employee relationship giving rise to a negligent supervision claim. . . .  In short, this case presents the novel issue of whether the CDA bars Jane Doe's failure to warn claim under California law. We conclude that it does not.

Doe No. 14 v. Internet Brands, Inc., supra. 
The Court of Appeals therefore reversed the U.S. District Court Judge’s granting Internet Brands’ motion to dismiss and remanded the case to that court “for proceedings consistent with this opinion.”  Doe No. 14 v. Internet Brands, Inc., supra.  In other words, the case goes forward.
If you are interested, you can read more about the facts and legal issues in this case in the news stories you can find here and here.             

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