Ninth Circuit Again Finds Site Can't Hide Behind Immunity Law

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By Alexis Kramer

May 31 — The U.S. Court of Appeals for the Ninth Circuit May 31 retained its position that an operator of a modeling website couldn't assert federal online publisher immunity against a claim that it failed to warn users of the risks associated with its site ( Doe v. Internet Brands, Inc. , 9th Cir., No. 12-56638, superseding opinion filed 5/31/16 ).

The Ninth Circuit had decided to withdraw and rehear a prior opinion that Section 230 of the Communications Decency Act, 47 U.S.C. §230, didn't bar an aspiring model's claim against website operator Internet Brands Inc. for negligent failure to warn users about the risk of being victimized by individuals using the site to perpetuate a rape scheme (20 ECLR 316, 3/4/15).

Internet companies and service providers had urged the court to set that ruling aside. They argued that it could impose undesirable liability on Internet service providers and threaten the growth and innovation of the Internet industry. But the court didn't change its mind.

The May 31 opinion is substantially similar to the court's prior opinion. The court added comments that the plaintiff didn't allege Internet Brands learned of the criminal activity through content monitoring, but rather through an outside source.

The addition of these comments suggests that the ruling might not apply to cases in which the website operator learned of the harmful activity on its own, Robert L. Rogers, senior counsel with the Holland & Knight LLP's Media Practice team in Orlando, Fla., told Bloomberg BNA May 31. “We may see a lot of debate by future plaintiffs and defending Internet companies as they test the limits of the opinion,” he said.

The court remanded the case for further proceedings on the merits of the model's failure to warn claim.

Not a Publisher Function

Section 230 of the CDA protects online publishers against liability for content produced by others, as long as they are performing traditional publisher functions and aren't content providers themselves.

Plaintiff Jane Doe alleged that two individuals used Internet Brands' site, Model Mayhem, to pose as talent scouts and lure users to Florida for fake modeling auditions. Doe, a victim of the rape scheme, alleged that Internet Brands knew about the scheme but negligently failed to warn its users.

The Ninth Circuit looked to Barnes v. Yahoo! Inc., 570 F.3d 1096 (9th Cir. 2009), in which the appeals court held that Section 230 barred a negligence claim against Yahoo! Inc. for failing to remove offensive profiles posted by a plaintiff's ex-boyfriend (14 ECLR 652, 5/13/09). The claim was based on Yahoo's traditional editorial functions to screen and remove content, the Barnes court said.

The court distinguished Barnes from the instant case. It said the duty to warn didn't require Internet Brands to take any action involving the editing or removal of user content. Internet Brands could have satisfied the alleged duty to warn by posting its own notice on the website, which falls outside of the scope of Section 230, the Ninth Circuit said.

The court added that imposing tort liability on site operators such as Internet Brands could make operating an Internet business “marginally more expensive,” but that Section 230 doesn't provide blanket immunity against claims that might have a marginal chilling effect on the Internet.

The CDA can't mean that businesses have blanket immunity from tort liability by virtue of their status as Internet publishers, the court said.

Herman Law represented Doe. Munger Tolles & Olson LLP represented Internet Brands.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Joseph Wright at jwright@bna.com