Metropolitan News-Enterprise


Thursday, April 9, 2015


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Circuit Judges Question Whether ‘Model Mayhem’ Site Is Immune From Rape Suit Under CDA


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals heard from both sides yesterday in a case alleging liability of the ‘Model Mayhem’ website after two of its users drugged and raped a woman by luring her to a bogus casting call.

U.S. District Judge John Walter of the Central District of California dismissed the action against Internet Brands, Inc. under §230(c)(1) of the federal Communications Decency Act. The appellate panel reversed that ruling last year, but granted rehearing in February and set the case for reargument.

The statute 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.

The victim, known in court as Jane Doe, sued Internet Brands for negligent failure to warn.

Jeff Herman, her attorney, argued before the panel that the case at issue has nothing to do with Internet Brands’ role as a publisher and that the CDA does not give Internet service providers “blanket immunity.”

He said that Internet Brands had a duty to warn users of potential predatory danger because the company knew that the two predators had used the site to find victims before.

Daniel Collins, who represents Internet Brands, argued that the site’s alleged duty has only to do with its status as the publisher, since the duty “is alleged to arise from the fact that we brought her information into the world without giving a warning.”

Judge Richard Clifton said that the case at hand is in “an entirely different context.”

“How is the CDA intended to protect your client?” he asked Collins. “What suggests that the policy does go further in a case like this?”

Clifton added that Internet Brands was not being asked to scrub its content, since the “problem is that predators were out there and could contact anybody who posted on your website.”

“You could satisfy the duty to warn not by editing, but just by giving a warning,” he said.

Pat Carome, who also represented the defendants, said that ruling in Doe’s favor will produce a “chilling effect” that “would not be marginal.”

U.S. District Judge Brian Cogan, of the Eastern District of New York and participating remotely, said that the case is a special one because “the company came into knowledge of these particular abusers.”

“That doesn’t happen all the time,” he said. “I’m less worried about opening the floodgates than you are.”

Carome said that one of the CDA’s key purposes is “to remove disincentives for service providers to engage in responsible self-policing and monitoring of their services.” He invoked Craigslist as an example of a company that engages in such practices.

“Model Mayhem was a platform that allowed Jane Doe and these two miscreants in Florida to communicate with one another,” he said. “That was all it did.”

“We also know that the proprietor knew about the miscreants in Florida,” Clifton pointed out.

In his rebuttal, Herman said that Carome’s disincentive argument “doesn’t make sense” to him.

“They’re saying that if there’s liability, then there’s a disincentive to warn potential victims of harm,” he said. “But that’s exactly what happened here.”

He continued: “They’re arguing that if they’re liable for that then they’re not going to warn them in the future, but we already know right now that they’re not warning them.”


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