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

Filing

FILED OPINION (MARY M. SCHROEDER, RICHARD R. CLIFTON and BRIAN M. COGAN) REVERSED AND REMANDED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [9243194]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANE DOE NO. 14,
Plaintiff-Appellant,
v.
INTERNET BRANDS, INC.,
DBA Modelmayhem.com,
Defendant-Appellee.

No. 12-56638
D.C. No.
2:12-cv-03626JFW-PJW

OPINION

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—Pasadena, California
Filed September 17, 2014
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.

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DOE V. INTERNET BRANDS, INC.
SUMMARY**

Communications Decency Act
The panel reversed the district court’s Federal Rule Civil
Procedure 12(b)(6) dismissal of a diversity action alleging
negligence under California law, and concluded that the claim
was not barred by the federal Communications Decency Act.
The Jane Doe plaintiff alleged that Internet Brands, Inc.’s
failure to warn users of its networking website,
modelmayhem.com, caused her to be a victim of a rape
scheme. Section 230(c)(1) of the Communications Decency
Act precludes liability that treats a website as the publisher or
speaker of information users provide on the website, and
generally protects websites from liability for material posted
on the website by someone else.
The panel held that 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,” and therefore the
Communications Decency Act did not bar the claim. The
panel expressed no opinion on the viability of the failure to
warn allegations on the merits, and remanded for further
proceedings.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Jeffrey Herman (argued) and Stuart S. Mermelstein, Herman
Law, Boca Raton, Florida, for Plaintiff-Appellant.
Patrick Fraioli, Ervin Cohen & Jessup LLP, Beverly Hills,
California; Wendy E. Giberti (argued), iGeneral Counsel,
P.C., Beverly Hills, California, for Defendant-Appellee.

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.

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I. Background
At the motion to dismiss stage, we assume factual
allegations stated in the Complaint filed by Plaintiff to be
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. In August 2010,
Internet Brands sued the Waitts for failing to disclose the

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.

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potential for civil suits arising from the activities of Flanders
and Callum. By that time, according to Jane Doe, Internet
Brands knew that Flanders and Callum had used Model
Mayhem to lure multiple women to the Miami area to rape
them.
In February 2011, Flanders, pretending to be a talent
scout, contacted Jane Doe, in the words of the Complaint,
“through Model Mayhem.” 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
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

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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).
Sections 230(c)(1) and (2) of the CDA provide:
(c) Protection for “Good Samaritan” blocking
and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive
computer service shall be treated as the

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publisher or speaker of any information
provided by another information content
provider.
(2) Civil liability
No provider or user of an interactive
computer service shall be held liable on
account of–
(A) any action voluntarily taken in
good faith to restrict access to or
availability of material that the
provider or user considers to be
obscene, lewd, lascivious, filthy,
excessively violent, harassing, or
otherwise objectionable, whether or
not such material is constitutionally
protected; or
(B) any action taken to enable or make
available to information content
providers or others the technical
means to restrict access to material
described in paragraph (1).
An “information content provider” is, under section
230(f)(3), “any person or entity that is responsible, in whole
or in part, for the creation or development of information
provided through the Internet or any other interactive
computer service.” 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

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section protects websites from liability for material posted on
the website by someone else.
Under section 230(c)(1), the protection applies even
though 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 v.
Yahoo!, Inc., 570 F.3d 1096, 1101–03 (9th Cir. 2009). 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.
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. Flanders and Callum are not alleged to have posted
anything themselves. The Complaint alleges only that “JANE
DOE was contacted by Lavont Flanders through
MODELMAYHEM.COM using a fake identity.” Jane Doe
also does not claim to have been lured by any posting that
Internet Brands failed to remove.
Instead, Jane Doe attempts to hold Internet Brands liable
for failing to warn her 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 such content. Any obligation to warn
could have been satisfied without changes to the content

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posted by the website’s users. Internet Brands would simply
have been required to give 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: 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. An alleged tort based on
a duty that would require such a self-produced warning
therefore 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

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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
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).
Jane Doe’s failure to warn claim has nothing to do with
Internet Brands’ efforts, or lack thereof, to edit or remove
user generated content. The 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. Liability would
not discourage “Good Samaritan” filtering of third party
content. The core policy of section 230(c), reflected in the
statute’s heading, does not apply, and neither does the CDA’s
bar.
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

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computer services, unfettered by Federal or State regulation.”
Broadly speaking, Internet Brands was an “intermediary”
between Jane Doe and the rapists, but there is no allegation
that Model Mayhem transmitted any potentially harmful
messages between Jane Doe and Flanders or Callum. There
is also no allegation that Flanders or Callum posted their own
profiles on the website.
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.
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
user content by hosting Jane Doe’s user profile on the Model
Mayhem website, and that action could be described as a

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“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. That does not mean the failure to warn claim
seeks to hold Internet Brands liable as the “publisher or
speaker” of user content, however. 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 8, 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 website from all potential liability.
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. The key factors discussed in prior cases are
not present here. 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 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

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content. 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).
There is in our case no 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.
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.