F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A N E D O E N O

. 14,Plaintiff-Appellant
,

v

.

I N T E R N E T B R A N D S , I N C ., DB A Modelmay

hem.com, Defendant-Appellee

. N o. 12-56638

D.C. No. 2:12-cv-03626- J F W -PJ W

OPI NI ON

Appeal from the United States District Court for the Central District of California J ohn F . W a lter, District J udg e, Presiding

Argued and Submitted F ebruary 7, 2014—Pasadena, California

F iled September 17, 2014

B efore: Mary

M. Schroeder and Richard R. Clifton, Circuit J udg es, and B rian M. Cog an, District J udg e. *

Opinion by

J udg e Clifton

* T h e Ho n o rab l e Brian M. Co g an , District Ju d g e f o r th e U .S. District Co urt f o r th e Eastern District o f

New Yo rk , sittin g b y

d esig n atio n

.D O E V

. I N T E R NE T B R A N D S , I N C

. 2

SUMMARY * *

Com m unications Decency Act

The panel reversed the district court’s F ederal Rule Civil Procedure 12(b)(6) dismiss al of a diversity action alleg ing neg lig ence under California law, and concluded that the claim

was n ot barred by the federal Communications Decency Act.

The J ane Doe plaintiff alleg ed that I nternet B r ands, I nc.’s failure to warn users of its networking w e b site, mode l m a y

hem.com, caused her to be a victim of a rape scheme. Section 230(c)(1) of the Communications D ecency Act precludes liability that treats a website as the publisher o r speaker o f information users provide o n t h e website, a nd g enerally protects websites from liability for material p osted on the website by

someone else.

The p anel h eld that Doe’s neg lig ent f ailure to warn claim did not seek to hold I nternet B rands liable as t h e “ p u blisher

or speaker of a n y information p rovided by another i n f o r m a t i o n c o n t e n t p r o v i d e r , ” a n d t h e r e f o r e t h e Communications Decency Act d id not b a r the claim. The panel ex p ressed no o p i n i o n on the v iability of the failure to

warn alleg a t i o ns o n the merits, and remanded for f urther proceeding s.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.D O E V

. I N T E R NE T B R A N D S , I N C

. 3

COUNSEL

J effrey Herman (arg

ued) and Stuart S. Mermelstein, Herman L aw, B o ca Raton, F lorida, for Plaintiff-Appellant.

Patrick F r aioli, Ervin Co hen & J essup L L P, B everly H ills, Cal i f ornia; W endy E. Giberti ( argued), iGeneral Counsel, P.C., B everly

Hills, California, for Defendant-Appellee.

OP INION

CL I F TON, Circuit J udg e :

Model May

h em is a networking w ebsite, found at modelmay

hem.com, for people in the modeling industry

. Plaintiff J ane Doe, an aspiring model who posted information about herself on the website, alleg es that two rapists used the website to lure her to a fake audition, where they drug g ed her, raped her, and recorded her for a pornog raphic v i d eo. She also alleg e s that Defendant I nternet B rands, the c ompany that

owns the website, knew about the rapists but did not warn her

or the website’s other users. She filed an action a ga i n st I nternet B r ands alleg ing liability for neg lig ence under California law based on that failure to warn.

The district court dismissed the a ction on the g round that her claim w as barred b y the Communications D e cency A ct (“CDA”), 47 U.S.C. § 2 3 0 ( c ) (2012). W e conclude that the C D A d o e s not b ar the claim. We reverse and remand for further proceeding s.D O E V

. I N T E R NE T B R A N D S , I N C

. 4

I. Background

At the motion to dismiss s t a ge , we assume f actual al l e ga t i o ns stated in the Complaint filed by Plaintiff to be true. 1 Sprewell v. Golden State W a rriors , 266 F .3d 979, 988 (9th Cir. 2001). Plaintiff alleg es that I nternet B ra nds owns and operates the w ebsite modelmay h em.com, which it purcha s e d i n 2008. Model May hem is a networking site for pr o f e s s i onal and aspiring models to market their services. I t has over 600,000 members. Plaintiff J a ne Doe, a f

i c t itious
name, was an aspi r i n g model w ho became a member o f Model May

hem.

Unbeknownst to J a

ne Doe, two persons, L avont F landers and Emerson Callum, w ere using Model May hem to identify targ e ts for a rape scheme, alleg edly as e a rly as 2006. F landers and Callum are not alleg ed to have posted their own profiles

on the website. I nstead, they b rowsed p rofiles on Model May hem posted by

models, contacted potential victims with fake identities posing as talent scouts, and lured the v i ct i ms to sout h Fl o rida for modeling auditions. Once a victim arrived, F landers 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 pornog raphy

.

I n 2008, I n ternet B rands purchased Model May hem from Donald and Taylor W aitts, the orig inal developers of the site. Shortly after the purchase, I n t e rn e t B rands learned of h ow F landers and Callum were using the w ebsite. I n Aug ust 2010, I nternet Br a

nds sued the W aitts for failing to d isclose the

1 Giv en th e serio u s n atu re o f th e alleg atio n s, w e n o te t h at I n t e r n e t B ran d s h as sp ecif

ically d en ied su

b stantially all o f th e alleg atio n s, in clu d in g th at th e assailan ts co n t acted P lain tif f th ro u g h th e w eb site.D O E V

. I N T E R NE T B R A N D S , I N C

. 5
potential f

or civil suits arising from the a ctivities o f F landers and Callum. B y that t i m e , a c c ording to J a ne Doe, Internet B rands knew that F l a n d e rs and Callum h a d used Model May hem to lure multipl e w o m en to the Miami area to rape them.

I n F ebruary 2011, F landers, pretending to be a talen t scout, contacted J a

ne D oe, in the words of the Complaint, “throug h Model May

hem.” J ane D o e went to south F lorida for a purported audition, w here F landers and Callum drug g ed, raped, and recorded her.

J a n e Doe filed this diversity action ag ainst I nternet B rands in th e C entral D istrict o f California, w here Internet B rands is b ased, asserting one c ount of neg lig ent f ailure to

warn under California law. She alleg es that I nterne t B rands knew about the activities of F landers and Callum but failed to

warn Model May

hem users that they w er e a t risk of being victimiz ed. She further alleg es that this failure to warn c aused her to be a victim of the rape scheme.

I nternet B rands filed a motion to dismiss the action under F ederal Rule of Civil Procedure 12(b)(6), on the g r ound that her claim was barred by

the CDA. The district court granted t h e motion to dismiss and dismissed the action wit h prej u d ice. I t denied leave to amend the complaint on the g round that any amendment wo u ld b e futile. J ane Doe appeals.

II. Discussion

W e review de novo a di s t r i c t court’s decision to g rant a motion to dismiss. E

dward s v

. Marin Park, Inc.
, 356 F .3d 1058, 1061 ( 9 t h C i r

. 2004). W e also review de novoD O E V

. I N T E R NE T B R A N D S , I N C

. 6
questions of statutory interpretation. United States v. Harvey
, 659 F .3d 1272, 1274 (9th Cir. 2011).

California law imposes a duty to warn a potential victim of third party harm when a person has a “special relationship to either the person whose conduct needs to be controlled or

. . . to the for e s eeable victim of that conduct.” Tarasoff v

. Regents of Univ. of California
, 17 Cal.3d 425, 435 ( 1 9 7 6 ), superseded by statute , Cal. Civ. Code § 43.92. J a n e D oe alleg es that I nternet B rands had a cogn iz able “special relationship” with her and that its failure to w a rn her o f F landers a

nd Callum’s rape scheme caused her to fall victim to it. I nternet B rands argues that the CDA precludes the claim. Althoug h we assume that I nternet B rands may contest the scope of the duty to warn under Califor n i a l a w and, in particular, the ex istence of the required sp e c i a l relationship, that issue is n ot before us. The dismissal of the action by the district court was based entirely on the CDA.

The questi o n before us, therefore, is whether the CDA bars J a ne Doe’s n egl i ge n t failure to warn claim under California law. W e beg in with the la n g uag e of the statute. Campbell v. Allied Van Lines I nc. , 410 F .3 d 618, 620 (9th Cir. 2005).

Sections 230(c)(1) and (2) of the CDA provide:

(c) Protection for “Good Samaritan” blocking and screening

of offensive material

(1) Treatment of publisher or speaker

No provider o r u ser of an interactive computer service shall b e treated as theD O E V

. I N T E R NE T B R A N D S , I N C

. 7 publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive

c o mputer service shall be held liable o n account of–

(A) any action volunta rily taken in g ood faith to restrict a ccess to o r availability of material th a t the provider or u s e r c onsiders to be obscene, lewd, lascivious, filthy
, ex cessively violent, harassing
, o r otherwise objecti onable, whether o r
n o t such material is constitutionally protected; or

(B ) a ny action taken to e nable or make avail a b le to information content providers or others th e technical

means to restrict access to materia l described in parag

raph (1).

An “information content provider” is, und e r section 230(f)(3), “any

person or entity that is responsible, in whole

or in part, for the creation o r development of infor m a t ion provided throug h the I nternet or a ny other interactive computer service.” Thus, section 230(c)(1) p recludes liability that treats a w e b s i t e as the publisher or speaker o f information users provide o n the website. I n g en e r al, thisD O E V

. I N T E R NE T B R A N D S , I N C

. 8

section protects websites from liability for material posted on the website by

someone else.

Under section 230(c )(1), the protection applies even thoug h the website proprietor h as not acted to remov e offensive content posted by others. F or ex ample, this court has held that th e CDA barred a n eg lig ent undertaking claim ag ainst a w ebsite that failed to remove an offensive profile posted on the website by the victim’s ex -boy friend. Barnes v

. Y a hoo!

, Inc. , 570 F .3d 1096, 1101–03 ( 9th Cir. 2009). Such liability
, the court ex p lained, would “treat” the website as the “publisher” of user content because “re moving content is something publishers do” and to permit liability for s u ch conduct “necessarily involves treatin g t he liable party a s a publisher of the content it failed to remove.” Id. at 1103.

J ane Doe’s claim is different, however. She does not seek to hold I nternet B rands li a b l e a s a “publisher or speaker” o f content some o ne posted on the Model May hem website, o r for I nt e rn et B rands’ failure to remove content posted on the website. F landers and Callum are not alleg ed to have posted any thing themselves. The Complaint alleg es o nly that “J ANE DOE was contacte d b y L a v o n t Fl an d e r s t h r o u g h MODEL MAYHEM.COM using a fake identity .” J a ne Doe also does not claim to have been lured by any posting th at I nternet B rands failed to remove.

I nstead, J ane Doe attempts to hold I nternet B rands liable for failing to warn he r a b o u t h ow third parties targ eted a nd lured victims throug h Model May hem. The duty to warn alleg edly imposed by California law would not require I nternet B rands t o remove any u ser content or otherwise affect how it publishes such content. A ny oblig ation to warn could have been satisfied without chang es to the co n t entD O E V

. I N T E R NE T B R A N D S , I N C

. 9 posted by the website’s users. I

nternet B rands would simply h ave been required to g ive a warning to Model May h e m users, perhaps b y posting a notice o n t h e website or b y informing users by email what it knew about the activities o f F landers and Callum.

Posting or emaili n g such a warning could be deemed an act of publishing information, b ut section 230(c)(1) bars only li ab i l i t y that treats a website as a publisher or speaker o f content provided by somebody else: in the words of the statute, “info r

m a t i o n p rovided by another information c ontent p rovider.” 4 7 U.S.C. § 230(c)(1). A post or email warn i n g that I n ternet B rands g enerated would involve o nly cont e n t that I nternet B rands itself produced. An alleg ed tort based on
a duty that w ould require such a self- p r o d u ced warning therefo r e falls outside o f section 230(c)(1). I n sum, J ane Doe’s neg lig e n t f

a i l u re to warn claim does not seek to hold I ntern e t B rands liable as the “publisher or speaker of any information provided by another informa tion c ontent provider.” Id

. As a result, we conclude that the CDA does not bar this claim.

The core pol i c y of section 230(c)(1) supports this conclusion. As the h e a ding to section 230(c) indica t e s , t he purpose of that section is to provide “[ p] rotection for ‘Good Samaritan’ b l ocking and screening of offensive material.” That means a website should be able to ac t as a “Good Samaritan” t o self-reg

ulate offensive third party c ontent without fear of liability

. I n particular, section 230 was in part

a reaction to Stratton O akmont, I n c. v. Prodigy Servs. Co.
, 1995 W L 323710 (N.Y. Sup. Ct. May 24, 1 995) (unpublished), a New Y ork state court decision holding that

an internet service provid er became a “publisher” of offensive

c ontent on its messag e boards because it deleted s o m eD O E V

. I N T E R NE T B R A N D S , I N C

. 10

offensive posts but not others. I d

. at *4. U n d er Stratton O a k mont ’s reasoning
, a w ebsite had to choose betw e e n voluntarily r emoving some offensive third p arty content, which would ex pose the site to liability for the content it did not r emove, or f

iltering nothing
, which would preven t liability for all third p arty content. See id. “In passing section 230, Cong ress soug ht to spare interactive computer services this g rim c hoice by allowing them to p erform some editing on user-g enerated content without thereby becoming liable for all defamatory or o t h e rwise unlawful messag e s that they didn’t e dit or delete.” Fair H o u s i n g Co u n c i l v. Roommates.Com, LLC
, 521 F .3d 1157, 1163 (9th Cir. 2008).

J ane Doe’s failure to warn claim has nothing to do with I nternet B rands’ efforts, or lac k thereof, to edit or remove
user g e n e r ated content. The theory is that I nternet B rands

s h o u l d be h eld liable, based on its knowledg e of the rape schem e and its “special relationship” with users like J ane Doe, for failing to g enerate its own warning

. L iability would not dis c o urag e “Good Samaritan” filtering of third party

co n t ent. The c ore policy of section 2 3 0(c), reflected in the statute’s heading
, d oes not apply
, and neither does the CDA’s bar.

Another policy of section 230 is to “ a v o i d the chilling effect upon I nternet free speech that would be occasioned b y the imposition of tort liability u pon comp a n i e s that do not create potentially harmful messag es b u t a r e simply intermediaries for their delivery

. ” Delfino v. Agilent Techs., Inc.
, 52 Cal. Rptr. 3d 3 76, 387 ( C t

. A p p

. 2006). As section 230(b) itself e x plains, “[ i] t is the policy of the United States

. . . to promote the continued development of the I n ternet

. . . [ and] to preserve the vibrant and c o mpetitive free market that presently ex ists for the I n t ernet and other interactiveD O E V

. I N T E R NE T B R A N D S , I N C

. 11
computer services, unfettered by F ederal or State regulation.” B roadly speaking
, I nternet B r and s w a s an “ intermediary ” between J ane Doe and the rapists
, b u t there is no alleg ation that Model May

hem transmitted any potential l y h armful messag es between J ane Doe and F landers or Callu m

. There is also no alleg ation that F landers or Callum posted their o wn profiles on the website.

I n a ny c ase, that I nternet B rands was in some sens e a n “intermediary

” between J a

ne Doe a n d the r apists does not

mean that the f

a i lure to warn claim treats I nternet B rands a s the publisher or speaker of user content. True, imposing any to r t l i a b ility on I nternet B r ands for its role as an interactive computer service could b e said to have a “chilling effect” on the internet, if only because such liabili t y w o u ld make

o p e r ating an internet business marg inally more ex pensive. B ut su c h a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. W e have already held that the CDA does not declare “a g eneral immu n i t y from liability deriving from third-party content.” Ba r n e s , 570 F .3d at 1 100. Cong ress has not provided an all p u rpose g et-out-of-jail-free card for businesses that publi s h user content on the internet, thoug h any claims mig ht have a marg inal chilling effect on internet publishing b us inesses. Moreover, the argument that our holding will have a chilling effect presupposes that J ane Doe has alleg ed a viable failure to warn claim under Californ i a l aw. T hat question is not before us and remains to be answered.

B a rring J ane Doe’s failure to warn claim would stretch the CDA bey ond its narrow lang uag e and its purpose. To be
sure, I n t e rnet B rands acted as the “publisher or speaker” o f

user c ontent by hosting J ane Doe’s user profile on the Model May hem website, and that ac t i o n c ould be described as aD O E V

. I N T E R NE T B R A N D S , I N C

. 12

“but-for” cause of her injuries. W ithout i t , Fl anders a nd Callum would not have i d e n t i fied her and been a ble to lure her to their trap. That does not mean the failure to warn claim seeks to hold I nternet B rands liable as the “ p u b l i s her o r speaker” of user content, however. Publishing activity is a but-for c ause of just about e v er y thing Model May

hem is involved in. I t is an internet publishing b u s iness. W ithout publish i n g u ser content, it would n ot e x ist. As noted above, however, we held in Barnes that the CDA does not provide a g eneral immunity ag ainst all claims derived from third-party content. I n that case w e affirmed the dismissal of a claim for neg lig ent undertaking as barred under the CDA, as d iscussed above at 8, but we reversed the dismissal of a claim for promissory estoppel under O reg on law. The publication o f the offensive profile p osted by the pl a i n t i ff’s f ormer boy friend was a “but-for” cause there, as well, b ecause without that posting the plaintiff w ould not have suffered any i n j u r y

. B ut that did n ot mean that the CDA immuniz e d the proprietor of website from all potential liability

.
The parties discu s s other court decisions reg arding the CDA in their briefs. The c a s e l a w provides no close analog ies, thoug h
, because the cases a r e all disting uishable in critical respects. The key

factors discussed in prior cases are not present here. The purported tort duty does not arise from alleg ations about mishandling the removal of third party content. Barnes
, 570 F .3d at 1105–06 (holding that the CDA bars neg lig ent un d ertaking claim arising f rom Yahoo’s failure to take r easonable c are in removing offensive profiles). Nor is there a contractual duty arisi n g from a promise d istinct from tort duty arising from publishing con d u c t. Id. at 1108–09 (holding t h at the CDA d oes not bar a promissory estoppel claim). The tor t duty asserted here d oes not arise from an alleg ed f

ailure to adequatel y re gulate access to userD O E V

. I N T E R NE T B R A N D S , I N C

. 13

content. Doe II v. M

yS p a c e, Inc.
, 175 Cal.App.4th 561, 573 (Ct. App. 2009) (holding that the CDA bars tort c laims based

on a duty to restric t a ccess to minors’ My Space profiles). There is in our c a s e no employ er-employee relationship g iving rise to a n e g lig ent supervision claim. Lansing v

. Southwest Airlines Co.
, 980 N.E.2d 630, 6 39–41 ( I ll. Ct. App. 2 0 1 2 ) ( holding that the CDA does not bar a neg lig ent supervision claim ag ainst an airline whose employ ee used the company email and tex t messag ing sy stems to harass the plaintiff). I n short, this c ase pr e s ents the novel issue o f whether the CDA bars J ane Doe’s failure to warn claim under California law. W e conclude that it does not.

III. Conclusion

The CDA does not bar J a ne Doe’s failure to warn c laim. W e ex press no opinion on the viability of the f ailure to warn alleg ation s o n the merits. W e hold only that the CDA is not

a valid b asis to dismiss J ane Doe’s c omplaint. A c cording ly
, we r everse and remand f

or p roceeding s consistent with this opinion.

REVERSED AND REMANDED

.