FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANE DOE NO. 14,

Plaintiff-Appellant,

v.

INTERNET BRANDS, INC.,

DBA Modelmayhem.com,

Defendant-Appellee.

No. 12-56638

D.C. No.

2:12-cv-03626-

JFW-PJW

OPINION

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted

February 7, 2014—Pasadena, California

Filed September 17, 2014

Before: Mary M. Schroeder and Richard R. Clifton, Circuit

Judges, and Brian M. Cogan, District Judge.*

Opinion by Judge Clifton

* The Honorable Brian M. Cogan, District Judge for the U.S. District

Court for the Eastern District of New York, sitting by designation.
2 DOE V. INTERNET BRANDS, INC.

SUMMARY**

Communications Decency Act

The panel reversed the district court’s Federal Rule Civil

Procedure 12(b)(6) dismissal of a diversity action alleging

negligence under California law, and concluded that the claim

was not barred by the federal Communications Decency Act.

The Jane Doe plaintiff alleged that Internet Brands, Inc.’s

failure to warn users of its networking website,

modelmayhem.com, caused her to be a victim of a rape

scheme. Section 230(c)(1) of the Communications Decency

Act precludes liability that treats a website as the publisher or

speaker of information users provide on the website, and

generally protects websites from liability for material posted

on the website by someone else.

The panel held that Doe’s negligent failure to warn claim

did not seek to hold Internet Brands liable as the “publisher

or speaker of any information provided by another

information content provider,” and therefore the

Communications Decency Act did not bar the claim. The

panel expressed no opinion on the viability of the failure to

warn allegations on the merits, and remanded for further

proceedings.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DOE V. INTERNET BRANDS, INC. 3

COUNSEL

Jeffrey Herman (argued) and Stuart S. Mermelstein, Herman

Law, Boca Raton, Florida, for Plaintiff-Appellant.

Patrick Fraioli, Ervin Cohen & Jessup LLP, Beverly Hills,

California; Wendy E. Giberti (argued), iGeneral Counsel,

P.C., Beverly Hills, California, for Defendant-Appellee.

OPINION

CLIFTON, Circuit Judge:

Model Mayhem is a networking website, found at

modelmayhem.com, for people in the modeling industry.

Plaintiff Jane Doe, an aspiring model who posted information

about herself on the website, alleges that two rapists used the

website to lure her to a fake audition, where they drugged her,

raped her, and recorded her for a pornographic video. She

also alleges that Defendant Internet Brands, the company that

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

or the website’s other users. She filed an action against

Internet Brands alleging liability for negligence under

California law based on that failure to warn.

The district court dismissed the action on the ground that

her claim was barred by the Communications Decency Act

(“CDA”), 47 U.S.C. § 230(c) (2012). We conclude that the

CDA does not bar the claim. We reverse and remand for

further proceedings.
4 DOE V. INTERNET BRANDS, INC.

I. Background

At the motion to dismiss stage, we assume factual

allegations stated in the Complaint filed by Plaintiff to be

true.1Sprewell v. Golden State Warriors, 266 F.3d 979, 988

(9th Cir. 2001). Plaintiff alleges that Internet Brands owns

and operates the website modelmayhem.com, which it

purchased in 2008. Model Mayhem is a networking site for

professional and aspiring models to market their services. It

has over 600,000 members. Plaintiff Jane Doe, a fictitious

name, was an aspiring model who became a member of

Model Mayhem.

Unbeknownst to Jane Doe, two persons, Lavont Flanders

and Emerson Callum, were using Model Mayhem to identify

targets for a rape scheme, allegedly as early as 2006. Flanders

and Callum are not alleged to have posted their own profiles

on the website. Instead, they browsed profiles on Model

Mayhem posted by models, contacted potential victims with

fake identities posing as talent scouts, and lured the victims

to south Florida for modeling auditions. Once a victim

arrived, Flanders 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 pornography.

In 2008, Internet Brands purchased Model Mayhem from

Donald and Taylor Waitts, the original developers of the site.

Shortly after the purchase, Internet Brands learned of how

Flanders and Callum were using the website. In August 2010,

Internet Brands sued the Waitts for failing to disclose the

1 Given the serious nature of the allegations, we note that Internet

Brands has specifically denied substantially all of the allegations,

including that the assailants contacted Plaintiff through the website.
DOE V. INTERNET BRANDS, INC. 5

potential for civil suits arising from the activities of Flanders

and Callum. By that time, according to Jane Doe, Internet

Brands knew that Flanders and Callum had used Model

Mayhem to lure multiple women to the Miami area to rape

them.

In February 2011, Flanders, pretending to be a talent

scout, contacted Jane Doe, in the words of the Complaint,

“through Model Mayhem.” Jane Doe went to south Florida

for a purported audition, where Flanders and Callum drugged,

raped, and recorded her.

Jane Doe filed this diversity action against Internet

Brands in the Central District of California, where Internet

Brands is based, asserting one count of negligent failure to

warn under California law. She alleges that Internet Brands

knew about the activities of Flanders and Callum but failed to

warn Model Mayhem users that they were at risk of being

victimized. She further alleges that this failure to warn caused

her to be a victim of the rape scheme.

Internet Brands filed a motion to dismiss the action under

Federal Rule of Civil Procedure 12(b)(6), on the ground that

her claim was barred by the CDA. The district court granted

the motion to dismiss and dismissed the action with

prejudice. It denied leave to amend the complaint on the

ground that any amendment would be futile. Jane Doe

appeals.

II. Discussion

We review de novo a district court’s decision to grant a

motion to dismiss. Edwards v. Marin Park, Inc., 356 F.3d

1058, 1061 (9th Cir. 2004). We also review de novo
6 DOE V. INTERNET BRANDS, INC.

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 foreseeable victim of that conduct.” Tarasoff v.

Regents of Univ. of California, 17 Cal.3d 425, 435 (1976),

superseded by statute, Cal. Civ. Code § 43.92. Jane Doe

alleges that Internet Brands had a cognizable “special

relationship” with her and that its failure to warn her of

Flanders and Callum’s rape scheme caused her to fall victim

to it. Internet Brands argues that the CDA precludes the

claim. Although we assume that Internet Brands may contest

the scope of the duty to warn under California law and, in

particular, the existence of the required special relationship,

that issue is not before us. The dismissal of the action by the

district court was based entirely on the CDA.

The question before us, therefore, is whether the CDA

bars Jane Doe’s negligent failure to warn claim under

California law. We begin with the language of the statute.

Campbell v. Allied Van Lines Inc., 410 F.3d 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 or user of an interactive

computer service shall be treated as the
DOE V. INTERNET BRANDS, INC. 7

publisher or speaker of any information

provided by another information content

provider.

(2) Civil liability

No provider or user of an interactive

computer service shall be held liable on

account of–

(A) any action voluntarily taken in

good faith to restrict access to or

availability of material that the

provider or user considers to be

obscene, lewd, lascivious, filthy,

excessively violent, harassing, or

otherwise objectionable, whether or

not such material is constitutionally

protected; or

(B) any action taken to enable or make

available to information content

providers or others the technical

means to restrict access to material

described in paragraph (1).

An “information content provider” is, under section

230(f)(3), “any person or entity that is responsible, in whole

or in part, for the creation or development of information

provided through the Internet or any other interactive

computer service.” Thus, section 230(c)(1) precludes liability

that treats a website as the publisher or speaker of

information users provide on the website. In general, this
8 DOE V. INTERNET BRANDS, INC.

section protects websites from liability for material posted on

the website by someone else.

Under section 230(c)(1), the protection applies even

though the website proprietor has not acted to remove

offensive content posted by others. For example, this court

has held that the CDA barred a negligent undertaking claim

against a website that failed to remove an offensive profile

posted on the website by the victim’s ex-boyfriend. Barnes v.

Yahoo!, Inc., 570 F.3d 1096, 1101–03 (9th Cir. 2009). Such

liability, the court explained, would “treat” the website as the

“publisher” of user content because “removing content is

something publishers do” and to permit liability for such

conduct “necessarily involves treating the liable party as a

publisher of the content it failed to remove.” Id. at 1103.

Jane Doe’s claim is different, however. 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 Complaint alleges only that “JANE

DOE was contacted by Lavont Flanders through

MODELMAYHEM.COM using a fake identity.” Jane Doe

also does not claim to have been lured by any posting that

Internet Brands failed to remove.

Instead, Jane Doe attempts to hold Internet Brands liable

for failing to warn her about how third parties targeted and

lured victims through Model Mayhem. 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 warn

could have been satisfied without changes to the content
DOE V. INTERNET BRANDS, INC. 9

posted by the website’s users. Internet Brands 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.

Posting or emailing such a warning could be deemed an

act of publishing information, but section 230(c)(1) bars only

liability that treats a website as a publisher or speaker of

content provided by somebody else: in the words of the

statute, “information provided byanother information content

provider.” 47 U.S.C. § 230(c)(1). A post or email warning

that Internet Brands generated would involve only content

that Internet Brands itself produced. An alleged tort based on

a duty that would require such a self-produced warning

therefore falls outside of section 230(c)(1). In sum, Jane

Doe’s negligent failure to warn claim does not seek to hold

Internet Brands liable as the “publisher or speaker of any

information provided by another information content

provider.” Id. As a result, we conclude that the CDA does not

bar this claim.

The core policy of section 230(c)(1) supports this

conclusion. As the heading to section 230(c) indicates, the

purpose of that section is to provide “[p]rotection for ‘Good

Samaritan’ blocking and screening of offensive material.” 

That means a website should be able to act as a “Good

Samaritan” to self-regulate offensive third party content

without fear of liability. In particular, section 230 was in part

a reaction to Stratton Oakmont, Inc. v. Prodigy Servs. Co.,

1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995)

(unpublished), a New York state court decision holding that

an internet service provider became a “publisher” of offensive

content on its message boards because it deleted some
10 DOE V. INTERNET BRANDS, INC.

offensive posts but not others. Id. at *4. Under Stratton

Oakmont’s reasoning, a website had to choose between

voluntarily removing some offensive third party content,

which would expose the site to liability for the content it did

not remove, or filtering nothing, which would prevent

liability for all third party content. See id. “In passing section

230, Congress sought to spare interactive computer services

this grim choice by allowing them to perform some editing on

user-generated content without thereby becoming liable for

all defamatory or otherwise unlawful messages that they

didn’t edit or delete.” Fair Housing Council v.

Roommates.Com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008).

Jane Doe’s failure to warn claim has nothing to do with

Internet Brands’ efforts, or lack thereof, to edit or remove

user generated content. The theory is that Internet Brands

should be held liable, based on its knowledge of the rape

scheme and its “special relationship” with users like Jane

Doe, for failing to generate its own warning. Liability would

not discourage “Good Samaritan” filtering of third party

content. The core policy of section 230(c), reflected in the

statute’s heading, does not apply, and neither does the CDA’s

bar.

Another policy of section 230 is to “avoid the chilling

effect upon Internet free speech that would be occasioned by

the imposition of tort liability upon companies that do not

create potentially harmful messages but are simply

intermediaries for their delivery.” Delfino v. Agilent Techs.,

Inc., 52 Cal. Rptr. 3d 376, 387 (Ct. App. 2006). As section

230(b) itself explains, “[i]t is the policy of the United States

. . . to promote the continued development of the Internet . . .

[and] to preserve the vibrant and competitive free market that

presently exists for the Internet and other interactive
DOE V. INTERNET BRANDS, INC. 11

computer services, unfettered by Federal or State regulation.”

Broadly speaking, Internet Brands was an “intermediary”

between Jane Doe and the rapists, but there is no allegation

that Model Mayhem transmitted any potentially harmful

messages between Jane Doe and Flanders or Callum. There

is also no allegation that Flanders or Callum posted their own

profiles on the website.

In any case, that Internet Brands was in some sense an

“intermediary” between Jane Doe and the rapists does not

mean that the failure to warn claim treats Internet Brands as

the publisher or speaker of user content. True, imposing any

tort liability on Internet Brands for its role as an interactive

computer service could be said to have a “chilling effect” on

the internet, if only because such liability would make

operating an internet business marginally more expensive.

But such a broad policy argument does not persuade us that

the CDA should bar the failure to warn claim. We have

already held that the CDA does not declare “a general

immunity from liability deriving from third-party content.”

Barnes, 570 F.3d at 1100. Congress has not provided an all

purpose get-out-of-jail-free card for businesses that publish

user content on the internet, though any claims might have a

marginal chilling effect on internet publishing businesses.

Moreover, the argument that our holding will have a chilling

effect presupposes that Jane Doe has alleged a viable failure

to warn claim under California law. That question is not

before us and remains to be answered.

Barring Jane Doe’s failure to warn claim would stretch

the CDA beyond its narrow language and its purpose. To be

sure, Internet Brands acted as the “publisher or speaker” of

user content by hosting Jane Doe’s user profile on the Model

Mayhem website, and that action could be described as a
12 DOE V. INTERNET BRANDS, INC.

“but-for” cause of her injuries. Without it, Flanders and

Callum would not have identified her and been able to lure

her to their trap. That does not mean the failure to warn claim

seeks to hold Internet Brands liable as the “publisher or

speaker” of user content, however. Publishing activity is a

but-for cause of just about everything Model Mayhem is

involved in. It is an internet publishing business. Without

publishing user content, it would not exist. As noted above,

however, we held in Barnes that the CDA does not provide a

general immunity against all claims derived from third-party

content. In that case we affirmed the dismissal of a claim for

negligent undertaking as barred under the CDA, as discussed

above at 8, but we reversed the dismissal of a claim for

promissory estoppel under Oregon law. The publication of

the offensive profile posted by the plaintiff’s former

boyfriend was a “but-for” cause there, as well, because

without that posting the plaintiff would not have suffered any

injury. But that did not mean that the CDA immunized the

proprietor of website from all potential liability.

The parties discuss other court decisions regarding the

CDA in their briefs. The case law provides no close

analogies, though, because the cases are all distinguishable in

critical respects. The key factors discussed in prior cases are

not present here. The purported tort duty does not arise from

allegations about mishandling the removal of third party

content. Barnes, 570 F.3d at 1105–06 (holding that the CDA

bars negligent undertaking claim arising from Yahoo’s failure

to take reasonable care in removing offensive profiles). Nor

is there a contractual duty arising from a promise distinct

from tort duty arising from publishing conduct. Id. at

1108–09 (holding that the CDA does not bar a promissory

estoppel claim). The tort duty asserted here does not arise

from an alleged failure to adequately regulate access to user
DOE V. INTERNET BRANDS, INC. 13

content. Doe II v. MySpace, Inc., 175 Cal.App.4th 561, 573

(Ct. App. 2009) (holding that the CDA bars tort claims based

on a duty to restrict access to minors’ MySpace profiles).

There is in our case no employer-employee relationship

giving rise to a negligent supervision claim. Lansing v.

Southwest Airlines Co., 980 N.E.2d 630, 639–41 (Ill. Ct. App.

2012) (holding that the CDA does not bar a negligent

supervision claim against an airline whose employee used the

company email and text messaging systems to harass the

plaintiff). In short, this case presents the novel issue of

whether the CDA bars Jane Doe’s failure to warn claim under

California law. We conclude that it does not.

III. Conclusion

The CDA does not bar Jane Doe’s failure to warn claim.

We express no opinion on the viability of the failure to warn

allegations on the merits. We hold only that the CDA is not

a valid basis to dismiss Jane Doe’s complaint. Accordingly,

we reverse and remand for proceedings consistent with this

opinion.

REVERSED AND REMANDED.