Section 230 Does Not Apply to Allegations That Website for Models Failed to Warn Plaintiff About Potential for Rape

In September, the 9th Circuit decided that Section 230 of the Communications Decency Act, 47 U.S.C. § 230, does not bar claims that a networking website for models failed to warn a member that a third party might use the plaintiff's profile to harm her offline. The opinion effectively holds that a website can be liable for the outcome of its users' voluntary postings if it has notice of the potential harm, and suggests the law may require such sites to post warnings.

In Doe v. Internet Brands, Inc., model "Jane Doe" alleged she created a profile on the website modelmayhem.com. Two men used the site to contact Doe, but did not post any content to the site. Posing as talent scouts, they arranged a fake audition, and when Doe showed, they drugged, raped, and recorded her. Doe alleged that Internet Brands, which bought Model Mayhem in 2008, knew the two men were using the site for this purpose, never disclosed that information to its users, and thus was liable for failure to warn under California law.

Internet Brands moved to dismiss on the sole ground that Section 230 barred the claim. That law prohibits an online service provider "as the publisher or speaker of any information provided by another information content provider," 47 U.S.C. § 230(c)(1), with only limited exceptions. Courts have widely interpreted the law to bar claims against websites premised on content provided by third parties.

Applying Section 230, the Internet Brands district court dismissed the claim with prejudice. The 9th Circuit reversed.

The court held that although Section 230 bars claims against websites for content posted by others, Doe's complaint did not "seek to hold Internet Brands liable as a 'publisher or speaker' of content someone else posted on the Model Mayhem website, or for Internet Brands' failure to remove content posted on the website." The two men had not posted on the website at all. Instead, according to the court, Doe's claim sought to impose liability for Internet Brands' failure "to warn her about how third parties targeted and lured victims through Model Mayhem."

At best, according to the court, Doe only sought to require Internet Brands to publish content itself—not to alter others' content. That, the court held, did not fall within Section 230's reach: "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 by another information content provider.'"

The court acknowledged that its decision could have a "chilling effect" on internet speech, but stated that "Congress has not provided an all-purpose get-out-of-jail-free card for businesses that publish user content on the internet." The decision is at odds with several cases holding Section 230 bars claims against websites based on harm arising from user content on the site—despite attempts to characterize the claims as arising from the websites' own conduct. See, e.g., Doe v. MySpace, 474 F. Supp. 2d 843, 849 (W.D. Tex. 2007), aff'd, 528 F.3d 413 (5th Cir. 2008) (dismissing claim that MySpace failed to prevent minors from meeting sexual predators on site as "disingenuous"); Beckman v. Match.com, 2013 WL 2355512 (D. Nev. May 29, 2013) (rejecting claims brought by victim who met assailant on Match.com; "The problem with plaintiff's attempt to focus on Match.com's alleged failure to warn or alleged negligent misrepresentation is that all of Match.com's conduct must trace back to the publication of third-party user content or profiles."). It also neglects to discuss the First Amendment implications of requiring websites to publish certain speech. 

Internet Brands, though, does not necessarily mean websites like Model Mayhem will ultimately be subject to tort liability for failure to warn—because plaintiffs must still allege the website's conduct meets the elements for that tort. In California, a negligent failure to warn claim requires the plaintiff to prove a "special relationship" with the defendant. The court, on a number of occasions, went out of its way to make clear it was expressing no opinion on whether the plaintiff could make out her 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."