9th Circuit: Failure to Warn
Not Preempted Under Section 230
In 2011, model Jane Doe went to Florida for an audition with a talent scout who contacted her via the website Model Mayhem. At the “audition” Doe was drugged, raped and recorded. Model Mayhem’s parent is alleged to have had prior knowledge of similar conduct by this party.
As a result, Jane Doe filed a complaint against Model Mayhem’s parent, Internet Brands that was promptly dismissed as being preempted by Section 230 of the Communications Decency Act which immunizes websites for statements made by third parties on their site.
The Ninth Circuit reversed in 2014 but then withdrew the opinion when Internet Brands appealed en banc. Last week the 9th Circuit released its opinion that which again held that the case should proceed.
Jane Doe’s failure to warn claim has nothing to do with Internet Brands’ efforts, or lack thereof, to edit, monitor, or remove user generated content. Plaintiff’s 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.