Horrifying 'Rape Scam' Case Leads To Questionable Ruling About Blaming A Website For Failing To Warn Of Rapists

Legal Issues

from the cda-230 dept

Thu, Sep 18th 2014 10:09am — Mike Masnick

For many years, we've written about the importance of the so-called "intermediary liability protections" found in Section 230 of the Communications Decency Act (CDA). The basic concept of Section 230 is that it's improper to blame a website for the actions done by users of that website -- noting that to blame the website would create tremendous chilling effects on the internet. However, at times, the courts have chipped away at these protections. Back in 2009, we wrote about a ruling in California in Barnes v. Yahoo in which the court ruled that Yahoo had given up its Section 230 protections after an employee promised to take down some content (the case was sort of an early revenge porn story).

Now, the 9th circuit appeals court is relying on that ruling to reject a Section 230 defense in another case, where the situation is -- without question -- horrible. It involves a site called Model Mayhem, where models and aspiring models can post their modeling profiles. Apparently, a pair of despicable excuses for human beings (and I almost hesitate to call them that much) named Lavont Flanders (who was a former Miami Beach police officer who was apparently fired, but not prosecuted, for soliciting the 13-year old daughter of a fellow cop) and Emerson Callum would troll through a site called Model Mayhem to find aspiring models, convince them to come for an "audition," and then proceed to drug them, rape them, film it and then sell the videos. Everything about this is horrific. I was going to say that I hope the two of them are on their way to rotting in prison for the rest of their lives, but it appears that's already been taken care of. Both have been given life sentences for what they did. The story behind that link has the following tidbit that becomes more important: "State prosecutors initially charged the men in Broward County, but they were freed on bond and continued to prey on women while they were free, prosecutors said."

The case here involves one of the victims of this situation suing Internet Brands, the company that owned Model Mayhem for at least some of the time that this was happening. Again, what she went through is absolutely horrible. But it seems like a massive stretch to blame the site. Internet Brands pointed to Section 230, and the district court dismissed the case against the company. However, the appeals court has now reversed, arguing that Section 230 only applies to certain kinds of intermediary liability -- those which involve treating the intermediary as a "publisher." All other intermediary liability is, apparently, fair game. From there, the issue is whether or not Model Mayhem / Internet Brands had a proactive duty, under California law, to warn users of the site of this particular scam by these individuals. The court notes that the company was aware of what these two guys were doing, but they weren't publishing anything on the site -- merely contacting women who published their own profiles. The site was likely aware of the pair due to that earlier arrest but nowhere does it suggest they knew the two were still out there continuing to take part in this horrific practice.

Either way, the woman claims that Internet Brands should have warned their users, and the court says Section 230 doesn't protect the site from such things (though does not determine whether or not Model Mayhem should have warned users of the site -- that question goes back to the lower court).

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.

The woman suing suffered a very real and incredibly horrifying harm. But it's worrisome when the result of it is to chip away at important protections that Congress put in place for intermediaries to protect them from liability from the actions of third parties. The constant efforts to chip away or dismantle Section 230 are already problematic enough. Having a court open up new "holes" in Section 230 like this will only lead to a new series of lawsuits from questionable claimants, seeking to get around Section 230 relying on rulings like this one.

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Filed Under: cda 230, emerson callum, intermediary liability, lavont flanders, liability, rape, scam

28 Comments

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Whatever (profile), 18 Sep 2014 @ 10:14am

I think one issue here may be that in order to contact models through the model mayhem system, you have to be a member. MM appears to have been in the position to turn that access off these guys once they knew about the charges, but instead turned a blind eye.

So perhaps section 230 doesn't apply because it's not about what was published, but what the site may have facilitated.
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AJ, 18 Sep 2014 @ 10:41am

"I think one issue here may be that in order to contact models through the model mayhem system, you have to be a member. MM appears to have been in the position to turn that access off these guys once they knew about the charges, but instead turned a blind eye. "

It says in the doc above that those two assholes didn't make a profile of their own, but "browsed profiles of models". I can't seem to find where it says that they were members, but if they were, and MM did nothing to block them, they get what they deserve.
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MondoGordo (profile), 18 Sep 2014 @ 10:42am

Re: in the position to turn that access off
Possibly ... but that assumes they used the same accounts for their subsequent predations. If the predators indeed used the same accounts, then MM clearly facilitated their actions. I seriously doubt this was the case ...
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Anonymous Coward, 18 Sep 2014 @ 10:45am

Maybe MM needs to set it up it's site differently and not expose these models unless you are indeed a verified member , It's common sense actually .
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Bill Silverstein (profile), 18 Sep 2014 @ 10:48am

Not about CDA , but what they knew.
Internet Brands ("IB") knew about the pair doing this. We know they knew about this because IB sued (or countersued) the Wait brothers for not giving them notice of what what going on with Flanders and Callum (the rapists) before the purchase.

IB is hurt here by judicial estoppel, as it claims it was harmed by the failure to warn and now it is being sued for failure to warn.
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all the stupid poeple, 18 Sep 2014 @ 10:55am

stupid
i know lets goto a complete strangers house to show off my body and never take ANY PRECAUTIONS like bringing a friend and see what kind of sickos wil eventually rape , murder or whatever....

this is like email scams...stupid people STILLLLLL open them and do stuff then complain they got ripped off...

it may come to a need to license these people from doing anything in life cause they are near and im going ot use the unpolitically correct word

RETARDED...
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Anonymous Coward, 18 Sep 2014 @ 11:27am

And so yet another moron warning is born. "Strangers soliciting young women on the internet may be rapists" has got to be up there with "don't put a cat in the microwave" on the No shit, Sherlock -scale.
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Anonymous Coward, 18 Sep 2014 @ 11:28am

arguing that Section 230 only applies to certain kinds of intermediary liability -- those which involve treating the intermediary as a "publisher."

That may be true in regards to this law, depending on how the section is worded. But it sounds like there is no direct vetting or endorsement of site users and, as such, making the site liable would still require the site owner to be nigh omniscient with respect to the users’ actions.

In the absence of any law that actually does make the site liable, I can’t see any reasonable jury actually ruling that the site should be held liable in the general case. Even in the specific case where the site owners have knowledge, it should only really hold if the site can be shown to have a duty to post such a warning.
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Anonymous Coward, 18 Sep 2014 @ 11:47am

(who was a former Miami Beach police officer who was apparently fired, but not prosecuted, for soliciting the 13-year old daughter of a fellow cop)

Seems to me it is the Miami Beach Force that needs to be sued or did they warn the internet of that predator?
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Anonymous Coward, 18 Sep 2014 @ 11:48am

>Pedo cop tries to rape yet another girl
>Turned out to be a cop's daughter
>He gets fired
>Not jailed or sued or anything
>Just fired
>He teams up with another guy, they start raping models
>They get arrested
>Get out on bail
>Start raping models again
>FINALLY get life sentences
>Who gets blamed for all this?
>The website they found the models on
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Mike Masnick (profile), 18 Sep 2014 @ 11:51am

Re:
I think one issue here may be that in order to contact models through the model mayhem system, you have to be a member. MM appears to have been in the position to turn that access off these guys once they knew about the charges, but instead turned a blind eye.

Actually if you read the ruling, they state exactly the opposite is true, so, nope:

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...

It has similar statements throughout the ruling.
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Lisa Westveld (profile), 18 Sep 2014 @ 12:04pm

I think the court is correct in this case. Section 230 just doesn't apply because it has nothing to do with the case. MM is just as responsible for these rapes as your average phone directory so they don't even need the protection of section 230. The rapists could have preyed upon their victims with any means they would find. You can't hold a car factory responsible for these rapes simply because the models were kidnapped in a car. Or hold a gun manufacturer responsible because they made the gun used in these crimes. Those can do fine without the protection of section 230.
So why would MM even need that protection? It has no fault in this all.
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Anonymous Coward, 18 Sep 2014 @ 12:21pm

Re:
I think you've hit the nail on the head here -- unfortunately, we have to sincerely hope that those involved with this case also see it this way.

I'd feel better if the appeals court found that section 230 was not applicable and furthermore the case was dismissed with prejudice, as the site was not involved in the offense, and further to that, the company being sued were not the owners of the site during the period in question -- at least sue the correct LLC (not the product, not the people).

However, the fact that the appeals court did not dismiss with prejudice makes me worried about how they are actually reading this case.

But then, maybe they're trying to go by the book and set up some solid precedence (that is, in cases where s230 doesn't hold true, you'd better be able to tie the company's actions to the incident directly, or your case never even hits the docket). One can only hope.
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Anonymous Coward, 18 Sep 2014 @ 12:33pm

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.

Marginally more expensive? How about significantly more expensive? All it takes is one expensive case or large judgment to bankrupt or seriously cripple some companies. The mere threat of it is enough to chill speech.

Can you imagine if Craigslist had to notify users whenever they learned of a particular scamming attempt?
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Anonymous Coward, 18 Sep 2014 @ 12:39pm

Re: stupid
true, but even if they were literally retarded, they don't 'deserve' to be raped for being so stupid...

that they should be kicking *themselves* for being so stupid, instead of suing *someone*/*anyone* to 'pay' for their horrific experience, is another thing...
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steell (profile), 18 Sep 2014 @ 1:24pm

Re: stupid
But isn't that the point of their entire argument? "I'm retarded so you should be responsible for protecting me from myself".
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PRMan, 18 Sep 2014 @ 1:28pm

Re: Re:
So, the old "you weren't omniscient" fault.

As a programmer, we deal with this all the time.
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Anonymous Coward, 18 Sep 2014 @ 1:36pm

The court got it wrong
So, if an interactive website receives a confidential government subpoena regarding certain users on its site, it should infer from the 9th Circuit that it should ignore the government's request for non-disclosure and warn its user community at large about the subject matter and affected users? The court had gone off the rails here.
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Whatever (profile), 18 Sep 2014 @ 1:41pm

Re: Re:
Actually if you read the ruling, they state exactly the opposite is true, so, nope:

In order to contact models on that site, you need to be a member. You cannot just cruise the site and contact people. The business model is based on paid memberships for those who seek to hire people.

So what you are saying is that they were able to create fake paid member accounts on MM and use those to take their bad actions? Did MM not verify "producer / agent" accounts?
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Anonymous Coward, 18 Sep 2014 @ 1:57pm

Re: Re: stupid
well isn't that "the American way" ? do something outstandingly stupid, accept no responsibility for your own actions, find someone with deep pockets to blame, sue for all you're worth and (if you get a sympathetic jury) you too can be rich and famous.
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Anonymous Coward, 18 Sep 2014 @ 2:01pm

Re:
yes ... marginally ... if there is real liability, they would buy insurance to cover themselves. The premiums are a marginal cost.
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Anonymous Coward, 18 Sep 2014 @ 3:14pm

Re: Re:
Sure sure. Just get insurance and there will be Champagne and caviar for everyone every time a new lawsuit is announced.
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Anonymous Coward, 18 Sep 2014 @ 5:40pm

Re: Re: Re:
You didn't do (enough? any?) research.

The article states: "Flanders repeatedly posed as a female model online..."

Model Mayhem's own join page states, "It is FREE to join but only available to individuals..."

You have to pay and submit more identifying information if you claim to be an agent and want to use the site for the official purpose of soliciting models. They didn't do that.
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JMT (profile), 18 Sep 2014 @ 5:54pm

A new definition of chilling effect?
"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."

Actually it not more expensive at all, at least in the implied monetary terms. In fact it's quite cheap to not allow public participation, or not even start a website, out of the fear of undeserved liability.

Whoever wrote that clearly has no idea what the term chilling effect actually means.
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hyth, 18 Sep 2014 @ 11:27pm

Re: Not about CDA , but what they knew.
I don't think judicial estoppel means what you think it means. To invoke the doctrine, "seemingly conflicting positions must be clearly inconsistent so that the one necessarily excludes the other."

The relationship between IB, the sellers, and the victims are all different, which means they have different duties. They also aren't really conflicting positions.

Judicial estoppel probably won't apply.
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G Thompson (profile), 19 Sep 2014 @ 12:44am

Re:
"don't put a cat in the microwave"

ummm... oh crap.... *walks away slowly*
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G Thompson (profile), 19 Sep 2014 @ 12:50am

Re:
This was my first thought too.. Why is your s230 even a part of this when it is basic Vicarious liability and Negligence at issue here.

Was there a reasonable, foreseeable and direct (neighbour) duty to inform the members who might be at some future date victims when as far as MM was concerned the case was already being handled by the appropriate authorities.

The answer to duty is a resounding NO!

Whereas the granting of bail to the two perpetrators was the real fault here since based on prior history and allegations there was a pattern of similar offenses. The courts have the vicarious duty then and have negligently (if you remove the immunity) failed.
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Anonymous Coward, 19 Sep 2014 @ 6:08am

Re:
Yeah, the more I read about these suits, the more I realize how out of touch the legal profession is with the rest of the world. To them, a lawsuit is just business, not a disruption of one’s life and finances.
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