October 21, 2020

Ninth Circuit takes fresh look at ‘Model Mayhem’ rape case


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Richard R. Clifton, Ninth Circuit Court of Appeals. Photo by Jason Doiy 8-27-02 010-2002

Richard R. Clifton, Ninth Circuit Court of Appeals.
Photo by Jason Doiy

By Vanessa Blum, From The Recorder

The U.S. Court of Appeals for the Ninth Circuit revisited a case Wednesday with implications for the legal immunity Internet companies like Facebook, Craiglist and Twitter can claim under Section 230 of the Communications Decency Act.

The same three-judge panel unanimously ruled last year that Internet Brands Inc., the operator of a website for aspiring models, could be sued for failing to warn users of known predators targeting the site. They agreed to reconsider the ruling after a group of web companies argued the decision would unleash a storm of lawsuits and threaten their businesses.

At a recent rehearing, the judges seemed unlikely to reverse course but signaled they’d narrowly tailor their decision.

“The concern is that opening the door to this kind of claim is going to mean essentially every website is going to have to post a warning against all sort of things that might happen,” said Judge Richard Clifton.

The facts of the case are unusual, Clifton said, but “we’re going to be writing something that will be a standard in cases where the facts aren’t quite so unique.”

In Doe v. Internet Brands, a model alleges that she was lured to South Florida by two men who drugged her, raped her and recorded the crime for a pornographic video. Doe says the men contacted her through her profile on Model Mayhem, and that website owner Internet Brands was aware of the rape scheme but failed to warn users.

U.S. District Judge John Walter in Los Angeles dismissed the case in 2012, concluding that the failure-to-warn claim was barred by the federal Communications Decency Act (CDA), which generally protects websites from liability for content posted by users.

Clifton, Circuit Judge Mary Schroeder and U.S. District Judge Brian Cogan of the Eastern District of New York disagreed and remanded the case, writing: “Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet.”

After the ruling, Internet Brands brought in a Munger, Tolles & Olson team led by partner Daniel Collins.

The only thing tying the Jane Doe plaintiff to his client, Collins told the panel on Wednesday, is Internet Brands role as an online publisher. Because the failure-to-warn claim relies on that relationship, it’s enough to trigger protection under the CDA, he argued.

But Clifton said the suit isn’t aimed at conduct, such as posting or editing third-party content, that the CDA was devised to protect. “It’s almost serendipitous that the relationship between Internet Brands and the plaintiff evolved from a website,” he said. “But your client’s not being held liable for what she posted as the publisher or speaker of that content and that’s what the CDA seems to be aimed at. ”

Wilmer Cutler Pickering Hale and Dorr partner Patrick Carome argued on behalf of amici curiae including eBay and Craiglist that the “chilling effect” of the court’s ruling “would not be marginal.”

In fact, he said, “it would be a mistake” to think of the Internet Brands case as an outlier. “These are heinous facts, your honor, but the contours of this fact pattern are actually not unusual.”

Making website operators liable for failing to warn users of possible risks could have the perverse effect of encouraging website operators to stick their heads in the sand instead of self-policing, Carome said.

Cogan acknowledged Carome might have a good policy argument. “If I were sitting in Congress I might write a broader immunity provision than is currently in the statute,” the judge said. “But the question we have is not is it a good thing, it’s was Congress in fact thinking about this problem?”

To that, Doe’s lawyer, Jeffrey Herman of Herman Law in Boca Raton, gave the court the easiest answer: “I think the court got it right the first time.”


Judge Richard Clifton, United States Court of Appeals for the Ninth Circuit

Jason Doiy / The Recorder

For more on this story go to: http://www.therecorder.com/id=1202723134128/Ninth-Circuit-Takes-Fresh-Look-at-Model-Mayhem-Rape-Case#ixzz3WvWI89Lg


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