9th Circuit: Failure to Warn Claims Outside Reach of Section 230

The Ninth Circuit has held that a subscriber to ModelMayhem, a modeling website, may pursue a claim for failure to warn based on California tort law.  Such a claim is not preempted under the Communications Decency Act (which bars website liability for third party content).

As excerpted below, the court concluded that

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 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.

. . .

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.


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