Jane Doe No. 14 v. Internet Brands, Inc.
Jane Doe No. 14 v. Internet Brands, Inc., DBA Modelmayhem.com, No. 12-56638 (9th Cir. Sept. 17, 2014), was a judicial opinion written by Judge Richard R. Clifton of the Ninth Circuit Court of Appeals reversing the district court's dismissal of diversity action alleging negligence under California law. Jane Doe was a member of modelmayhem.com, a networking website owned by Internet Brands. Another user lured her into a fake audition and then drugged and raped her, recording it for a pornographic video. In 2012, Doe filed an action against Internet Brands  alleging liability for negligence under California law based on that failure to warn. The United States District Court for the Central District of California ruled that Internet Brands was not liable for informing users, such as Doe, of potential dangers as they were protected under the federal Communications Decency Act (CDA), a landmark law, protecting web hosts from suit over libelous material that they carried but did not write. In 2014, the Ninth Circuit reversed the District Court's decision, instead ruling that the claim was not barred by Section 230 of the Communications Decency Act. In February 2015, however , the court withdrew the 2014 opinion, and set the case for reargument in March 2015. In May 2016, the panel again held that Doe's case could proceed. The resolution of this case was expected to have large implications for precedent on the liability of websites arising from user activity. In December 2016 the 9th Circuit declined to extent immunity. Background. Plaintiff Jane Doe posted information about herself on the website modelmayhem.com. She alleged that in February 2011, two men used the site to lure her to a fake audition, drug her with a benzodiazepine, rape her, and record the  acts for a pornographic video. She alleged that the owner of the site Internet Brands knew of the criminal activity, and failed to warn her or other users of the site. She filed an action against Internet Brands alleging liability for negligence under California law and sought damages no less than $10 million. In 2007 Emerson Callum and Lavont Flanders were arrested and charged with luring and victimizing at least five women in a scheme similar to the one they used to lure Jane Doe. They contacted these women through internet modeling sites including modelmayhem.com to participate in a  fake audition for a fraudulent modeling contract. Modelmayhem.com was purchased by Internet Brands in 2008 from original developers Donald and Tyler Waitt. In August 2010, the Waitts sued Internet Brands for not paying them, "Waitt v. Internet Brands Inc.", No. 10.cv.3006 GHK (C.D. Cal. 2010). In response, Internet Brands claimed that the Waitts failed to disclose an ongoing criminal investigation into Lavont Flanders, which might expose Internet Brands to later civil suits. In December 2011, Emerson Callum and Lavont Flanders were convicted of sex trafficking in Miami. In February 2012, they were sentenced to 12 consecutive life terms in prison . Court proceedings. The District Court. Doe filed a complaint against Internet Brands claiming they should be liable for the acts of Callum and Flanders for two reasons; In August 2012, the United States District Court for the Central District of California dismissed her claim on the grounds that Internet Brands was immune from prosecution under the Communications Decency Act, 47 U.S.C. Section 230(c) (2012). Citing "Julie Doe II v. MySpace, Inc.", 175 Cal. App 4th 561, Judge John F. Walter concluded that based on "well-settled authority", Internet Brands did not have a duty to warn its users of harm . They were "absolutely immune" from liability in this case. The interpretation of the court was that the CDA grants immunity to all web-based service providers for civil claims brought by a user for harm caused by another user. Referencing "Doe v. MySpace, Inc.", 528 F.3d 413 (5th Cir. 2008) the court further concluded that immunity still applies even when there is actual knowledge of the alleged tortious conduct. The Ninth Circuit. In February 2014, the Ninth Circuit Court of Appeals concluded that the Communications Decency Act did not bar Jane Doe's claim, and remanded the case to the  district court for further proceedings. In February 2015, however, the panel withdrew its opinion and agreed to rehear the case. Throughout the opinion the court makes a distinction between Doe's failure to warn claim, and Section 230 of the CDA that provides liability immunity for website proprietors for content posted by a user. Jane 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 user, therefore it falls outside of section 230(c)(1)." The Ninth Circuit discussed two main public policy intentions of Section  230. The first, and in their opinion core intention of section 230(c)(1), is the protection for 'Good Samaritan' blocking and screening of material. This allows a website proprietor to remove some offensive content without making themselves liable for content they did not remove. The Ninth Circuit concluded that Doe's failure to warn claim does not discourage 'Good Samaritan' filtering. Another intention of Section 230 highlighted by the Ninth Circuit 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." "Michelangelo Delfino et al. v. Agilent Technologies, Inc.", 52 Cal. Rptr. 3d 376, 387 (Ct. App. 2006). To this the court concluded that the "chilling effect" was marginal, and barring Doe's claim would "stretch the CDA beyond its narrow language and its purpose". Citing "Barnes v. Yahoo!, Inc.", 570 F.3d 1096, 1101-03 (9th Cir. 2009), the Ninth Circuit held that the CDA does not provide general immunity against all claims derived from third-party content. The court addressed arguments made by Internet Brands, and dismissed them as not analogous: In February 2015 , the Ninth Circuit panel withdrew the September 2014 opinion and agreed to rehear the case. In May 2016, the panel again held that Doe's case could proceed. Communications Decency Act. The Communications Decency Act (CDA) 47 USC § 230, was enacted by congress in 1996 in response to the Internet boom. The CDA policy was defined as a means to foster continued development of the Internet. The main policy intention was to protect websites from liability for content submitted by their users. "No 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." The CDA does not protect websites when they are the "content provider". In "MCW, Inc. v. badbusinessbureau.com", No. Civ.A.3:02-CV-2727-G, (N.D. Tex. April 19, 2004), the court rejected the defendant's motion to dismiss, ruling that Section 230 did not apply because the defendants wrote the disparaging content themselves. In "Fair Housing Council of San Fernando Valley v. Roommates.com, LLC", 521 F.3d 1157 (9th Cir. 2008), the Ninth Circuit rejected Section 230 immunity. The court concluded that Roommates.com elicited discriminatory information from the users with their content management filters. In  the majority of cases the courts have upheld Section 230 immunity, taking a broad interpretation of the CDA. The case of "Jane Doe No. 14 v. Internet Brands, Inc., DBA Modelmayhem.com" is unusual since Doe's claim did not intend to hold Internet Brands liable as the "publisher or speaker". Future. Jeff Herman, the plaintiff's lawyer, was quoted as saying, "This a landmark opinion and a major victory for victims of sexual abuse because for the first time ever websites can be held liable for failing to protect their users from a known danger. I think it has far -reaching implications for the Internet." There has been criticism of the appellate court decision. Santa Clara Law School professor Eric Goldman and lawyer Venkat Balasubramani stated that this decision seems contrary to Section 230 and all cases that have previously dealt with the issue. Goldman fears that this ruling will imply websites are liable for allowing people to talk to each other. Balasubramani believes this will cause networks to self-censor and over-censor. Jane Doe stated that she was horrified when she found out that modelmayhem.com knew that Flanders was actively prowling the site for victims a year earlier , and hadn't warned users. She stated that she doesn't care about the money in her suit, but that she wants all websites to be accountable for educating naïve people about known dangers. California law imposes a duty to warn a potential victim of third party harm when there is a "special relationship" to either the person needing to be controlled or the potential victim. Internet Brands will likely contest their "special relationship" with Doe. Also, Internet Brands specifically denies the alleged assailant contacted Plaintiff through the website. Internet Brands also states that "[the] Plaintiff does not even plead  that Internet Brands' alleged failure to perform in accordance with any legally recognized duty is the cause of her injuries. She can not state claim for relief in the absence of a causation allegation."