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

from the cda-230 dept

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.

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