9th Circuit Hears Duty-to-Warn Case Involving ModelMayhem.com

Rhett Pardon

PASADENA, Calif. — In a closely watched case, the 9th U.S. Circuit Court of Appeals yesterday heard from both sides in a civil suit alleging liability of ModelMayhem.com after two of its users drugged and raped a woman by luring her to a bogus casting call.

Emerson Callum and accomplice Lavont Flanders Jr. were given consecutive life sentences in prison for their misdeeds in Florida, and Internet Brands, the parent company of ModelMayhem.com, won an appellate re-hearing over whether it should be civilly liable in the case.

The woman, known as Jane Doe No. 12, sued the site’s operators for negligent failure to warn, claiming the company knew but failed to warn users.

But a federal judge dismissed her case under Section 230 of the Communications Decency Act, which limits the liability of a website's publisher for content posted by third parties — in this case, Doe’s posting of her contact information.

On appeal, a 9th Circuit panel last year tossed the lower court decision and ruled that the Communications Decency Act did not bar the woman’s “failure to warn” claim against ModelMayhem.com. But the website’s counsel won a rehearing in the case in February, which was heard yesterday.

Doe’s attorney, Jeff Herman, argued that the case has nothing to do with ModelMayhem.com’s role as a publisher and that the CDA does not give Internet service providers "blanket immunity."

Herman argued that ModelMayhem.com had a duty to warn users of potential predatory danger because the company knew that the two predators had used the site to find victims before.

“We don’t want to hold them liable for third-party content,” Herman said. “What we are seeking to do is hold them liable over that they knew: That my client was at risk and there was a failure to warn.”

Attorney Daniel Collins, who represents ModelMayhem.com, said that the site's alleged duty has only to do with its status as the publisher since the duty "is alleged to arise from the fact that we brought her information into the world without giving a warning."

But panelist Judge Richard Clifton said that the case is in “an entirely different context” because ModelMayhem.com knew about the “miscreants in Florida.”

“How is the CDA intended to protect your client?” he asked Collins. “What suggests that the policy does go further in a case like this?”

The “problem is that predators were out there and could contact anybody who posted on your website,” the jurist remarked. “You could satisfy the duty to warn not by editing, but just by giving a warning.”

Clifton noted that the case, which he characterized as "complicated," "is going to open the door to numerous duty-to-warn cases."

"We know that there are predators out there," he said. "Does that mean that every [site] has to provide notice somewhere by saying, 'Use this website at your own risk'?"

"I can imagine Internet service providers being concerned and asking, 'How do we protect ourselves?'" he said.

The case has attracted the attention of numerous Internet companies and organizations that have sided with ModelMayhem.com.

In an amicus brief, Facebook, Craigslist, Tumblr, the Computer and Communications Industry Association, The Internet Association and Care.com said that they have settled on interpretations granting broad immunity to online intermediaries for harms arising from third-party content.

Yesterday’s 9th Circuit hearing can be heard here.