Academic journal article Harvard Law Review

Internet Law - Communications Decency Act - Ninth Circuit Declines to Extend S. 230 Immunity to Failure-to-Warn Claims

Academic journal article Harvard Law Review

Internet Law - Communications Decency Act - Ninth Circuit Declines to Extend S. 230 Immunity to Failure-to-Warn Claims

Article excerpt


The Communications Decency Act of 1996 (1) (CDA) provides immunity to websites for certain torts committed on their platforms by third-party users. (2) To do so, section 509 of the CDA (codified at 47 U.S.C. [section] 230) states that websites cannot be "treated as the publisher or speaker of any information provided by another information content provider." (3) A dating website, for example, is not liable for defamatory content posted by one of its users. (4) Recently, in Doe v. Internet Brands, Inc.,5 the Ninth Circuit held that [section] 230 immunity did not protect Internet Brands, the owner of the website Model Mayhem, from a failure-to-warn claim. (6) In doing so, the court declined to adopt an alternative understanding of the statute more in line with the law's stated policy objectives.

Lavont Flanders and Emerson Callum used Model Mayhem, a networking site for models, to find their victims. Posing as talent agents, they contacted women advertising on the website and invited them to fake auditions. There, they would drug and then rape their victims, recording the crimes to sell as pornography. (7) Flanders used a fake identity to contact Jane Doe. (8) Doe went to the fake "audition, where Flanders and Callum drugged, raped, and recorded her." (9)

Doe sued Internet Brands in the Central District of California for failure to warn under California law. (10) She alleged that Internet Brands had detailed knowledge of the criminal scheme but did nothing to warn users. (11) Internet Brands moved to dismiss, contending that [section] 230 barred the claim. (12)

The district court granted the motion to dismiss. (13) It analogized to Doe v. MySpace, Inc., (14) a Fifth Circuit case in which a mother sued MySpace, a social networking website, for negligently allowing children to create public profiles and meet adult predators. (15) The Fifth Circuit held that [section] 230 immunity applied to MySpace because the mother's claims were "merely another way of claiming that MySpace was liable for publishing the communications and they sp[oke] to MySpace's role as a publisher of online third-party-generated content." (16) Similarly, the district court held, "despite Plaintiff's characterization of her claim, Plaintiff is essentially asking Defendant to advise its users of known risks associated with content provided by third parties on its website," and "any duty Defendant has to notify its users of known risks derives solely from its status as a publisher of that content." (17) Doe appealed. (18)

The Ninth Circuit reversed. (19) Writing for the panel, Judge Clifton (20) held that [section] 230 did not bar Doe's failure-to-warn claim because the claim did not treat Internet Brands as the "publisher or speaker" of third-party content on the website. (21) Instead, Doe sought "to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted and lured victims through Model Mayhem." (22) The court distinguished Doe's claims from a paradigmatic case of [section] 230 immunity: a defamation claim against a website for hosting defamatory content from a third party. (23) Here, the court said that 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." (24) The court reasoned that the duty would not require Model Mayhem to delete any third-party content or affect content monitoring. (25) The court said a warning posted on the website or sent by email would suffice. (26)

The court also addressed the policy objectives of [section] 230. Section 230 was a direct response to Stratton Oakmont, Inc. …

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