Model Mayhem Case: 9th Circuit Removes Website’s CDA Shield to Liability
Rapists Prowled ModelMayhem.com to Poach an Aspiring Model
ModelMayhem.com is a networking website for people in the model industry. For any young talent, the site can be a key to starting a modeling career. Typically, models and photographers create profiles with their basic professional information and images of their previous work. In a fashion similar to online dating, the two may mutually select one another to do a shoot. This process foregoes any agency vetting, as the model and/or photographer are usually both starting out and have yet to secure representation. Thus, when a photographer invites a model to work together on a shoot, it’s on the model to determine her participation and her safety.
In January 2011, Plaintiff Jane Doe (a placeholder name to protect the identity of the true plaintiff), an aspiring model who posted information about herself on the website, got an email from another model who said she’d seen Doe on ModelMayhem.com and liked her look. The woman said that a modeling agency was doing a big casting call in Miami and Doe should check it out, and suggested that it could lead to a $200,000 contract with a $50,000 signing bonus. She then passed Doe’s number along to her “agent”, who called Doe, saying his name was Eric. He gave her the details about the shoot and suggested she get down to Miami right away. In February and on her own dime, Doe flew herself to Miami from New York and booked herself a room in a hotel near the airport that Eric suggested (red flag!). 
After Doe got to her hotel, Eric picked her up and drove her to a studio where he dropped off her portfolio and, and then helped her prepare to perform in a commercial for alcoholic beverages (Suspicious, yet?). Each time she had to say her lines, Doe was to drink the beverages. Inevitably, she became woozy. Next, Eric told her they were to shoot a love scene for another commercial, but he had to pick up his partner. Then they went back to her hotel room. At some point early on, Doe had blacked out. When she awoke the next day, she was disoriented and showed physical signs of abuse. She immediately called the police. 
Doe went back to New York, deleted her ModelMayhem.com profile and gave up on modeling. Three months later, the FBI called and said that the two men who had raped her had done the same thing to other women. The two rapists, Emerson Callum and Lavont Flanders, Jr. were pulling the same scheme on many others since 2006; inviting would-be models to Miami, drugging them and assaulting them, all on film, many of which they sold. Doe flew back to Miami to testify at a sentence hearing against Callum and Flanders. In 2012, Callum and Flanders – the men who give all photographers a bad name – were sentenced to life in prison.
Doe Sues Internet Brands, Wants to Hold Website Liable
Though the rapists are now behind bars, Doe did not feel justice had been fully served. Doe brought suit against Internet Brands, Inc. (IB), the owner of ModelMayhem.com, in a California federal court. She alleged that IB actually knew about the activities of Flanders and Callum but failed to warn ModelMayhem.com 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.
Usually, it would be hard to imagine a website actually knowing about the illegal conduct of their users. But IB’s knowledge in this case is undeniable. In 2008, IB purchased ModelMayhem.com from the original developers, Donald and Taylor Waitts. Shortly after the purchase, IB learned of how Flanders and Callum were using the website. In August 2010, IB sued the Waitts for failing to disclose the potential for civil suits arising from the activities these two men. By that time, according to Jane Doe, IB had the requisite level of knowledge to know Flanders and Callum were a threat, and thus owed a duty to warn her and other users.
Where’s That Handy CDA Shield When You Need It?
Internet Brands filed a motion to dismiss the complaint, on the ground that her claim was barred by section 230(c) of the Communications Decency Act (CDA).
The CDA is a very important tool for digital companies, websites, and Internet service providers. The statute grants federal immunity to any cause of action that would make a website liable for information originating from a third party user of their service. Said another way, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.
The policy behind this law is to create an open and efficient online marketplace. It also avoids a chilling effect on Internet speech and conduct, by ensuring that digital companies can offer their services without fear of being sued for what their users say and do. This is why YouTube and Vimeo can allow users to upload their own videos, why Amazon and Yelp let their customers write their own user reviews, why Craigslist can let sellers host classified ads, and why Facebook, Twitter, Instagram and Vine can offer social networking.
With this policy in mind, the district court granted Defendant IB’s motion to dismiss, concluding that Jane Doe’s action was barred by the CDA. Doe appealed, however, and the Ninth Circuit disagreed with the lower court’s decision.
Ninth Circuit Says CDA Does Not Apply, ModelMayhem.com May be Liable
The Ninth Circuit reversed the district court’s ruling, concluding that Section 230 does not bar Doe’s duty to warn claim. According to the court, this is not a case based on IB’s failure to remove content. In fact, the assailants are not even alleged to have posted any content. The Complaint alleges only that the assailants through ModelMayhem.com, using a fake identity, contacted Jane Doe.
So, in contrast to being a case about the removal of third party content, the court says it’s about content (i.e., a warning) that IB itself failed to provide.
One might wonder how IB was supposed to warn their users? Well, the Ninth Circuit suggests that IB simply could have posted a notice on the ModelMayhem.com website or informed users by email what it knew about the activities of Flanders and Callum. Thus, any obligation to warn could have been satisfied without changes to the content posted by the website’s users.
Doesn’t posting a notice or sending an email count as publishing information for §230(c) standards? Again, the Ninth Circuit says no. Section 230(c) of the CDA bars only liability that treats a website as a publisher or speaker of content provided by someone else. A post or email that IB generated would only involve content that IB itself produced. In sum, Jane Doe’s negligent failure to warn claim does not seek to hold IB liable as the “publisher or speaker of any information provided by another information content provider.” As a result, the court concludes that the CDA does not bar her claim.
Legal Mayhem Ensues
This is somewhat of a bombshell ruling. It involves a sympathetic plaintiff and very bad, no-good, horrific set of facts. In a way, it is similar to the contentious Ninth Circuit ruling in the Google v. Garcia case. Both rulings seem unprecedented and create gaping doctrinal holes – or at least expose loopholes in the law.
Here, in a very unsatisfactory way, the Ninth Circuit did not touch on the merits of the “duty to warn” claim. Yet, the appellate decision is still a victory for Jane Doe, because it at least keeps open the possibility of her further recovery from IB. From her vantage point, yes, Callum and Flanders are in jail, but a CDA “get out jail free card” should not extend to IB – who KNEW that the rapists’ criminal activity had been taking place for FIVE years. To a plaintiff, this is inexcusable. Of course, the lower court will have to dig deeper into the facts, and decide a few more things, such as: if IB’s knowledge did sufficiently exist, whether IB had a special relationship with Doe and other users; if IB owed a duty to Doe; and whether IB breached a duty to warn their users.
Other questions remain unanswered. If it is accepted that IB has an obligation to warn, does that mean that all intermediaries have an obligation to warn about possibly harmful users? If so, does the duty extend to all manners of harm?
One practical effect of the ruling is that there could be a whole new burden placed on the Facebooks and Googles of the world. If a social network comes across a specific user with a dangerous past and then fails to warn, it may be on the hook.
And what level of harm is sufficient to require a website to initiate a warning? Would Facebook or Twitter have to reasonably believe that a user poses a threat or must they establish knowledge? If a website does send notice to a user, must they ensure that their users fully comprehend the warning?
These issues are definitely worth a head-scratch, because all of the questions posed above seem contrary to the exact policy that the CDA was founded upon. Easy to say, this ruling opens up a can of worms.
 Kasmir Hill. “Modeling Website Didn’t Warn Users Rapists Were Preying On Them.” 18 Sept. 2014. Forbes.com.
 Jane Doe filed this diversity action against IB in the Central District of California, where IB is based, asserting one count of negligent failure to warn under California law.
 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).
 Communications Decency Act § 230(c)(1)-(2).
Feature Image “Markus Klinko & Indriana” by Mark Sebastian via Flickr Creative Commons license.
ScreenShot from ModelMayhem.com