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 modelmayhem.com, 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 notes, a 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, modelmayhem.com 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 modelmayhem.com. . . . Internet Brands even brought a civil suit
against the seller of modelmayhem.com 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 modelmayhem.com 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.
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