Jane Doe No. 14 v. Internet Brands, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOE NO. 14, No. 12-56638
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-03626-JFW-PJW
INTERNET BRANDS, INC.,
DBA Modelmayhem.com, ORDER AND OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 7, 2014
Opinion withdrawn February 24, 2015
Re-argued and Submitted April 8, 2015
Pasadena, California
Filed May 31, 2016
Before: Mary M. Schroeder and Richard R. Clifton, Circuit
Judges, and Brian M. Cogan, District Judge.*
Opinion by Judge Clifton
*
The Honorable Brian M. Cogan, District Judge for the U.S. District
Court for the Eastern District of New York, sitting by designation.
2 DOE V. INTERNET BRANDS, INC.
SUMMARY**
Communications Decency Act
The panel withdrew the opinion filed on September 17,
2014, and in a superseding opinion reversed the district
court’s Fed. R. Civ. P. 12(b)(6) dismissal, as barred by the
Communications Decency Act, of an action against Internet
Brands, Inc. alleging liability for negligence under California
law based on a failure to warn; and remanded for further
proceedings.
Section 230(c) of the Communications Decency Act
provides that “[n]o cause of action may be brought and no
liability may be imposed under any State or local law that is
inconsistent with this section.”
Plaintiff Jane Doe sought to hold Internet Brands liable
for failing to warn her about information it obtained from an
outside source about how third parties targeted and lured
victims through Internet Brand’s website modelmayhem.com,
a networking website for people in the modeling industry.
The panel held that the Communications Decency Act did
not bar Jane Doe’s failure to warn claim under California law.
The panel concluded that 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
information content provider,” 47 U.S.C. § 230(c)(1), and
therefore the Communications Decency Act did not bar the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. INTERNET BRANDS, INC. 3
claim. The panel expressed no opinion on the viability of the
failure to warn allegations on the merits.
COUNSEL
Jeffrey Herman (argued) and Stuart S. Mermelstein, Herman
Law, Boca Raton, Florida, for Plaintiff-Appellant.
Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los
Angeles, California; Jonathan H. Blavin, Munger, Tolles &
Olson LLP, San Francisco, California; Wendy E. Giberti,
iGeneral Counsel, P.C., Beverly Hills, California; Patrick
Fraioli, Ervin Cohen & Jessup LLP, Beverly Hills, California,
for Defendant-Appellee.
Patrick J. Carome (argued), Wilmer Cutler Pickering Hale
and Dorr LLP, Washington, D.C.; Felicia H. Ellsworth and
Brook Hopkins, Wilmer Cutler Pickering Hale and Dorr,
Boston, Massachusetts, for Amici Curiae The Computer and
Communications Industry Association; The Internet
Association; Care.com, Inc.; Craigslist, Inc.; Facebook, Inc.;
IAC/Interactivecorp; and Tumblr, Inc.
ORDER
By order entered February 24, 2015, Defendant-Appellee
Internet Brands Inc.’s Petition for Rehearing, filed October
31, 2014, was granted, the Petition for Rehearing En Banc
was denied as moot, the opinion filed on September 17, 2014
was withdrawn, and the case scheduled for a new oral
argument.
4 DOE V. INTERNET BRANDS, INC.
An opinion is filed together with this order. Subsequent
petitions for rehearing or rehearing en banc may be filed.
OPINION
CLIFTON, Circuit Judge:
Model Mayhem is a networking website, found at
modelmayhem.com, for people in the modeling industry.
Plaintiff Jane Doe, an aspiring model who posted information
about herself on the website, alleges that 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 that Defendant Internet Brands, the company that
owns the website, knew about the rapists but did not warn her
or the website’s other users. She filed an action against
Internet Brands alleging liability for negligence under
California law based on that failure to warn.
The district court dismissed the action on the ground that
her claim was barred by the Communications Decency Act
(“CDA”), 47 U.S.C. § 230(c) (2012). We conclude that the
CDA does not bar the claim. We reverse and remand for
further proceedings.
I. Background
At the motion to dismiss stage, we assume factual
allegations stated in the Complaint filed by Plaintiff to be
DOE V. INTERNET BRANDS, INC. 5
true.1 Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). Plaintiff alleges that Internet Brands owns
and operates the website modelmayhem.com, which it
purchased in 2008. Model Mayhem is a networking site for
professional and aspiring models to market their services. It
has over 600,000 members. Plaintiff Jane Doe, a fictitious
name, was an aspiring model who became a member of
Model Mayhem.
Unbeknownst to Jane Doe, two persons, Lavont Flanders
and Emerson Callum, were using Model Mayhem to identify
targets for a rape scheme, allegedly as early as 2006. 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, and lured the victims
to south Florida for modeling auditions. Once a victim
arrived, Flanders and Callum used a date rape drug to put her
in a semi-catatonic state, raped her, and recorded the activity
on videotape for sale and distribution as pornography.
In 2008, Internet Brands purchased Model Mayhem from
Donald and Taylor Waitts, the original developers of the site.
Shortly after the purchase, Internet Brands learned of how
Flanders and Callum were using the website. It is not alleged
precisely how Internet Brands obtained that information, but
it is alleged that the company “as early as August, 2010,
knew that two individuals, Lavont Flanders and Emerson
Callum, had been criminally charged in this scheme, and
further knew from the criminal charges, the particular details
1
Given the serious nature of the allegations, we note that Internet
Brands has specifically denied substantially all of the allegations,
including that the assailants contacted Plaintiff through the website.
6 DOE V. INTERNET BRANDS, INC.
of the scheme, including how MODELMAYHEM.COM had
been used in the scheme and its members victimized.”
Specifically, it is alleged that Internet Brands knew that:
a. Lavont Flanders and Emerson
Callum would contact female
MODELMAYHEM.COM members, using
fake identities, disguised as talent scouts.
b. Lavont Flanders and Emerson Callum
would lure female MODELMAYHEM.COM
members to South Florida to participate in
fake auditions for a fraudulent modeling
contract opportunity.
c. Lavont Flanders and Emerson
C a l l u m woul d drug t he fem a l e
MODELMAYHEM.COM members with a
date-rape drug during the fake audition.
d. Emerson Callum would then rape the
unknowingly drugged women.
e. Lavont Flanders and Emerson Callum
would record the rape on video camera.
f. Lavont Flanders and Emerson Callum
would produce the rape videos and distribute
the video on the internet, guised as consensual
hardcore pornography.
It is also alleged that Internet Brands sued the Waitts in
August 2010 for failing to disclose the potential for civil suits
arising from the activities of Flanders and Callum.
DOE V. INTERNET BRANDS, INC. 7
The reference to criminal charges suggests that the
information was obtained by Internet Brands from an outside
source, not from monitoring postings on the Model Mayhem
website. As noted above, Flanders and Callum did not post on
the website.
In February 2011, several months after Internet Brands
had learned about the criminal activity, Flanders, pretending
to be a talent scout and using a false identity, contacted Jane
Doe, in the words of the Complaint, “through” the Model
Mayhem website.2 Jane Doe went to south Florida for a
purported audition, where Flanders and Callum drugged,
raped, and recorded her.
Jane Doe filed this diversity action against Internet
Brands in the Central District of California, where Internet
Brands is based, asserting one count of negligent failure to
warn under California law. She alleges that Internet Brands
knew about the activities of Flanders and Callum but failed to
warn Model Mayhem users that they were at risk of being
victimized. She further alleges that this failure to warn caused
her to be a victim of the rape scheme.
Internet Brands filed a motion to dismiss the action under
Federal Rule of Civil Procedure 12(b)(6), on the ground that
her claim was barred by the CDA. The district court granted
the motion to dismiss and dismissed the action with
prejudice. It denied leave to amend the complaint on the
2
Internet Brands has contended that Jane Doe was contacted directly by
her assailants, not through the website. At oral argument, counsel for Jane
Doe may have agreed that the contact was outside the website. This
distinction does not affect our conclusion.
8 DOE V. INTERNET BRANDS, INC.
ground that any amendment would be futile. Jane Doe
appeals.
II. Discussion
We review de novo a district court’s decision to grant a
motion to dismiss. Edwards v. Marin Park, Inc., 356 F.3d
1058, 1061 (9th Cir. 2004). We also review de novo
questions of statutory interpretation. United States v. Harvey,
659 F.3d 1272, 1274 (9th Cir. 2011).
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.” Tarasoff v.
Regents of Univ. of California, 17 Cal. 3d 425, 435 (1976),
superseded by statute, Cal. Civ. Code § 43.92. Jane Doe
alleges that Internet Brands had a cognizable “special
relationship” with her and that its failure to warn her of
Flanders and Callum’s rape scheme caused her to fall victim
to it. Internet Brands argues that the CDA precludes the
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. The dismissal of the action by the
district court was based entirely on the CDA.
The question before us, therefore, is whether the CDA
bars Jane Doe’s negligent failure to warn claim under
California law. We begin with the language of the statute.
Campbell v. Allied Van Lines Inc., 410 F.3d 618, 620 (9th
Cir. 2005).
DOE V. INTERNET BRANDS, INC. 9
Section 230(c) of the CDA, is titled “Protection for ‘Good
Samaritan’ blocking and screening of offensive material.” It
provides two types of protection from civil liability, but only
the first type is relevant to this case:
(1) Treatment of publisher or speaker
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 preemptive effect of this subsection is express: “No
cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with
this section.” Section 230(e)(3).
Separated into its elements, subsection (c)(1) precludes
liability for “(1) a provider or user of an interactive computer
service (2) whom a plaintiff seeks to treat, under a state law
cause of action, as a publisher or speaker (3) of information
provided by another information content provider.” Barnes v.
Yahoo!, Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009)
(footnote omitted). Thus, section 230(c)(1) precludes liability
that treats a website as the publisher or speaker of
information users provide on the website. In general, this
section protects websites from liability for material posted on
the website by someone else.
The first element is satisfied in this case because Internet
Brands is a provider of an interactive computer service as that
10 DOE V. INTERNET BRANDS, INC.
term is defined in section 230(f)(2).3 The essential question,
then, is whether Plaintiff’s failure to warn cause of action
“inherently requires the court to treat” Internet Brands “as a
publisher or speaker” “of information provided by another
information content provider.” Barnes, 570 F.3d at 1100–02.
Put differently, the case turns on whether it would be
inconsistent with section 230(c)(1) for the State of California
to require an interactive computer service provider to warn its
users about the threat of a known sexual predator.
A clear illustration of a cause of action that treats a
website proprietor as a publisher is a defamation action
founded on the hosting of defamatory third-party content.
See, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119
(9th Cir. 2003). In such circumstances, the protections of
section 230(c)(1) apply, and they continue to apply even if
the website proprietor has not acted to remove offensive
content posted by others. For example, this court has held that
the CDA barred a negligent undertaking claim against a
website that failed to remove an offensive profile posted on
the website by the victim’s ex-boyfriend. Barnes, 570 F.3d at
1101–03. Such liability, the court explained, would “treat”
the website as the “publisher” of user content because
“removing content is something publishers do” and to permit
liability for such conduct “necessarily involves treating the
liable party as a publisher of the content it failed to remove.”
Id. at 1103.
3
“The term ‘interactive computer service’ means any information
service, system, or access software provider that provides or enables
computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet and
such systems operated or services offered by libraries or educational
institutions.” Section 230(f)(2).
DOE V. INTERNET BRANDS, INC. 11
Jane Doe’s claim is different, however. She does not seek
to hold Internet Brands liable as a “publisher or speaker” of
content someone posted on the Model Mayhem website, or
for Internet Brands’ failure to remove content posted on the
website. Jane Doe herself posted her profile, but she does not
seek to hold Internet Brands liable for its content. Nor does
she allege that Flanders and Callum posted anything to
the website. The Complaint alleges only that “JANE
DOE was contacted by Lavont Flanders through
MODELMAYHEM.COM using a fake identity.” Jane Doe
does not claim to have been lured by any posting that Internet
Brands failed to remove. Internet Brands is also not alleged
to have learned of the predators’ activity from any monitoring
of postings on the website, nor is its failure to monitor
postings at issue.
Instead, Jane Doe attempts to hold Internet Brands liable
for failing to warn her about information it obtained from an
outside source about how third parties targeted and lured
victims through Model Mayhem. The duty to warn allegedly
imposed by California law would not require Internet Brands
to remove any user content or otherwise affect how it
publishes or monitors such content.
Any alleged obligation to warn could have been satisfied
without changes to the content posted by the website’s users
and without conducting a detailed investigation. Internet
Brands could have given a warning to Model Mayhem users,
perhaps by posting a notice on the website or by informing
users by email what it knew about the activities of Flanders
and Callum. 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:
12 DOE V. INTERNET BRANDS, INC.
in the words of the statute, “information provided by another
information content provider.” 47 U.S.C. § 230(c)(1). A post
or email warning that Internet Brands generated would
involve only content that Internet Brands itself produced.
Therefore, an alleged tort based on a duty that would require
such a self-produced warning falls outside of section
230(c)(1).
In sum, Jane Doe’s negligent failure to warn claim does
not seek to hold Internet Brands liable as the “publisher or
speaker of any information provided by another information
content provider.” Id. As a result, we conclude that the CDA
does not bar this claim.
The core policy of section 230(c)(1) supports this
conclusion. As the heading to section 230(c) indicates, the
purpose of that section is to provide “[p]rotection for ‘Good
Samaritan’ blocking and screening of offensive material.”
That means a website should be able to act as a “Good
Samaritan” to self-regulate offensive third party content
without fear of liability. In particular, section 230 was in part
a reaction to Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995)
(unpublished), a New York state court decision holding that
an internet service provider became a “publisher” of offensive
content on its message boards because it deleted some
offensive posts but not others. Id. at *4. Under Stratton
Oakmont’s reasoning, a website had to choose between
voluntarily removing some offensive third party content,
which would expose the site to liability for the content it did
not remove, or filtering nothing, which would prevent
liability for all third party content. See id. “In passing section
230, Congress sought to spare interactive computer services
this grim choice by allowing them to perform some editing on
DOE V. INTERNET BRANDS, INC. 13
user-generated content without thereby becoming liable for
all defamatory or otherwise unlawful messages that they
didn’t edit or delete.” Fair Housing Council v.
Roommates.Com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008)
(en banc) (hereafter Roommates.Com). Simply put, the
immunity provision was “enacted to protect websites against
the evil of liability for failure to remove offensive content.”
Id. at 1174.
Jane Doe’s failure to warn claim has nothing to do with
Internet Brands’ efforts, or lack thereof, to edit, monitor, or
remove user generated content. Plaintiff’s theory is that
Internet Brands should be held liable, based on its knowledge
of the rape scheme and its “special relationship” with users
like Jane Doe, for failing to generate its own warning. Thus,
liability would not discourage the core policy of section
230(c), “Good Samaritan” filtering of third party content.
Another policy of section 230 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.” Delfino v. Agilent Techs.,
Inc., 52 Cal. Rptr. 3d 376, 387 (Ct. App. 2006). As section
230(b) itself explains, “[i]t is the policy of the United States
. . . to promote the continued development of the Internet . . .
[and] to preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive
computer services, unfettered by Federal or State regulation.”
Jane Doe’s cause of action does not seek to impose
“intermediary” liability. Although Internet Brands may have
been an “intermediary” between Jane Doe and the rapists in
a broad sense, there is no allegation that Model Mayhem
transmitted any potentially harmful messages between Jane
14 DOE V. INTERNET BRANDS, INC.
Doe and Flanders or Callum. There is also no allegation that
Flanders or Callum posted their own profiles on the website.
That Internet Brands was in some sense an “intermediary”
between Jane Doe and the rapists simply does not mean that
the failure to warn claim treats Internet Brands as the
publisher or speaker of user content. That Internet Brands was
in some sense an “intermediary” between Jane Doe and the
rapists simply does not mean that the failure to warn claim
treats Internet Brands as the publisher or speaker of user
content.
It may be true that 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. “[T]he
Communications Decency Act was not meant to create a
lawless no-man’s-land on the Internet.” Roommates.Com, 521
F.3d at 1164. 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.
Barring Jane Doe’s failure to warn claim would stretch
the CDA beyond its narrow language and its purpose. To be
sure, Internet Brands acted as the “publisher or speaker” of
DOE V. INTERNET BRANDS, INC. 15
user content by hosting Jane Doe’s user profile on the Model
Mayhem website, and that action could be described as a
“but-for” cause of her injuries. Without it, Flanders and
Callum would not have identified her and been able to lure
her to their trap. But that does not mean the failure to warn
claim seeks to hold Internet Brands liable as the “publisher or
speaker” of user content.
Publishing activity is a but-for cause of just about
everything Model Mayhem is involved in. It is an internet
publishing business. Without publishing user content, it
would not exist. As noted above, however, we held in Barnes
that the CDA does not provide a general immunity against all
claims derived from third-party content. In that case we
affirmed the dismissal of a claim for negligent undertaking as
barred under the CDA, as discussed above at 10, but we
reversed the dismissal of a claim for promissory estoppel
under Oregon law. The publication of the offensive profile
posted by the plaintiff’s former boyfriend was a “but-for”
cause there, as well, because without that posting the plaintiff
would not have suffered any injury. But that did not mean
that the CDA immunized the proprietor of the website from
all potential liability. As we observed in Roommates.Com,
“we must be careful not to exceed the scope of the immunity
provided by Congress.” 521 F.3d at 1164 n.15. Congress
could have written the statute more broadly, but it did not.
The parties discuss other court decisions regarding the
CDA in their briefs. The case law provides no close
analogies, though, because the cases are all distinguishable in
critical respects. For example, the purported tort duty does
not arise from allegations about mishandling the removal of
third party content. Barnes, 570 F.3d at 1105–06 (holding that
the CDA bars negligent undertaking claim arising from
16 DOE V. INTERNET BRANDS, INC.
Yahoo’s failure to take reasonable care in removing offensive
profiles). Nor is there a contractual duty arising from a
promise distinct from tort duty arising from publishing
conduct. Id. at 1108–09 (holding that the CDA does not bar
a promissory estoppel claim).
The tort duty asserted here does not arise from an alleged
failure to adequately regulate access to user content or to
monitor internal communications that might send up red flags
about sexual predators. Doe II v. MySpace, Inc.,
175 Cal. App. 4th 561, 573 (Ct. App. 2009) (holding that the
CDA bars tort claims based on a duty to restrict access to
minors’ MySpace profiles); Doe v. MySpace, Inc., 528 F.3d
413 (5th Cir. 2008) (holding that CDA bars claims for
negligence and gross negligence in not preventing a 13 year
old girl from lying about her age to create a personal profile
that led to contact by a sexual predator). Jane Doe alleges
actual knowledge by Internet Brands from an outside source
of information about criminal activity.
This case does not concern an employer-employee
relationship giving rise to a negligent supervision claim.
Lansing v. Southwest Airlines Co., 980 N.E.2d 630, 639–41
(Ill. Ct. App. 2012) (holding that the CDA does not bar a
negligent supervision claim against an airline whose
employee used the company email and text messaging
systems to harass the plaintiff).
In short, this case presents the novel issue of whether the
CDA bars Jane Doe’s failure to warn claim under California
law. We conclude that it does not.
DOE V. INTERNET BRANDS, INC. 17
III. Conclusion
The CDA does not bar Jane Doe’s failure to warn claim.
We express no opinion on the viability of the failure to warn
allegations on the merits. We hold only that the CDA is not
a valid basis to dismiss Jane Doe’s complaint. Accordingly,
we reverse and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED.