Thursday, September 18, 2014
Ninth Circuit Revives Rape Victim’s Suit Against Modeling Website
Panel Says Immunity Statute Does Not Apply Because Action Does Not Involve Third-Party Content
By KENNETH OFGANG, Staff Writer
An aspiring model who claims that two men obtained information about her from a website, then used that material to lure her into being raped, can sue the website operator for negligent failure to warn, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel reversed a ruling by U.S. District Judge John Walter of the Central District of California, who dismissed the action against Internet Brands, Inc. under §230(c)(1) of the federal Communications Decency Act.
The section provides in part 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.” It expressly preempts any conflicting state law.
Judge Richard Clifton, writing for the Ninth Circuit, said §230 did not apply because the plaintiff was not suing over content provided to Internet Brands by a third party.
He emphasized that the panel was expressing no opinion on the merits of the failure-to-warn claim, and that while the courts are required to treat the plaintiff’s allegations as true for purposes of a motion to dismiss, the defendant has denied the allegations, including the claim that the rapists found the plaintiff through the website.
The woman, suing as Jane Doe, alleged that she was one of a number of women preyed upon by Lavont Flanders Jr. and Emerson Callum, who were convicted in a federal court in Miami two years ago on sex-related and conspiracy charges, and sentenced to life in prison. Prosecutors said the two lured women to South Florida with false promises of modeling work, gave them drinks laced with date-rape drugs, then filmed the women being raped and sold the film online and in adult stores.
Jane Doe claimed that the pair learned of her interest in modeling through modelmayhem.com. The website solicits memberships from models, agents, photographers and other professionals and advertises itself as “the largest community of artists in the industry.”
Jane Doe alleges that the company knew about Callum and Flanders but failed to warn users about the rape scam.
Section 230 does not bar her claim, Clifton said, because she does not seek to hold Internet Brands liable as the publisher “of content someone posted on the Model Mayhem website, or for internet Brands’ failure to remove content posted on the website.”
The Ninth Circuit, the judge acknowledged, has interpreted the immunity broadly, applying it, for example, to a claim that a website operator was negligent in failing to remove an unflattering profile of a user posted by an ex-boyfriend.
“Jane Doe’s claim is different, however,” the judge wrote. “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 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 work could have been satisfied without changes to the content posted by the website’s users.”
The company “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,” he added.
“Barring Jane Doe’s failure to warn claim would stretch the CDA beyond its narrow language and its purpose,” he said. “To be sure, Internet Bands acted as the ‘publisher or speaker’ of user content.”
Internet Brands bought the site from its original developers, Donald and Taylor Waitts, in 2008. When they learned of Flanders and Callum’s scheme, they sued the Waitts in August 2010 for not telling them of men’s alleged activities, Clifton noted.
Judge Mary M. Schroeder and visiting District Judge Brian M. Cogan of the Eastern District of New York joined in the opinion.
Attorneys who argued on appeal were Jeffrey Herman of Boca Raton, Fla. for the plaintiff and Wendy E. Giberti of iGeneral Counsel, P.C. in Beverly Hills for the defendant.
The case is Jane Doe No. 14 v. Internet Brands, Inc., 10-55692.
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