WEB SITE LIABILITY – The Breach of CDA Immunity

Jane Doe v. Model Mayhem

A cornerstone supporting the Internet and free publication of information is the Communications Decency Act,(47 U.S.C. § 230) or CDA.  The CDA provides immunity for websites as the publisher or speaker of information posted by users. Thus, whatever may be posted on Facebook, or other public web pages by various parties does not impose liability on that web page.

In this case, Internet Brands operates Model Mayhem, (www.modelmayhem.com) a web site used by models who post information and photos. The plaintiff, Jane Doe No. 14, alleges 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 the defendant that owns the website, knew about the rapists but did not warn her or the website’s other users.

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.” Cal. Civ. Code § 43.92. Jane Doe filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn.

The 9th Circuit Court of Appeals 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 CDA did not bar the claim. Jane Doe’s failure to warn claim had nothing to do with defendant’s 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 for failing to warn users like Jane Doe. The case will go forward.

Expect this opinion to have ripple effects through the Internet community as many sites that skirt the law and support or even advocate inferentially illegal activity, from drug use to piracy either directly or through message boards, may face liability for their conduct. The liability will not for publishing information or allowing information to be published, but in their failure to warn users of the consequences of using the web page or the information in the web page.

 

Full text of opinion:  Jane Doe No. 14 v. Internet Brands, Inc. DBA Modelmayhem.com, 12-56638, (9th Cir., Sept. 17, 2014)

 

 

 

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