9th Circuit Won't Rehear ModelMayhem 'Failure to Warn' Case

Aug 30, 2016 3:21 PM PST

SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals today denied a renewed petition to rehear a key "failure to warn" case involving the ModelMayhem.com website.

The petition, made by defendant ModelMayhem and numerous Internet companies and organizations, asked the full 9th Circuit to review its earlier decision that held that Section 230 of the Communications Decency Act does not immunize a networking website from a failure-to-warn claim.

In May, the 9th Circuit  for a second time held that Section 230 does not bar civil claims made by a woman who was raped after she was lured to a bogus casting call on ModelMayhem.com.

The decision in May was similar to a previous one made by a 9th Circuit panel in April that sided with the woman, known as Jane Doe No. 14, who was challenging a lower court ruling that tossed her case.

The previous ruling by the 9th Circuit was withdrawn in February and re-argued.

The case ended up at the 9th Circuit after a lower court dismissed her claims for monetary damages under Section 230 of the Communications Decency Act, which limits the liability of a website's publisher for content posted by third parties. In this case, it was Doe’s posting of her contact information.

Doe claimed that ModelMayhem operators knew but failed to warn users that two men, Lavont Flanders and Emerson Callum, would use the site to lure victims to the Miami area for bogus modeling auditions. The men, she said, then drugged, raped and filmed her.

Flanders and Callum were tried, convicted and given consecutive life sentences in prison for their activities.

The 9th Circuit in its May decision tossing the lower court ruling and sending it back to the lower court said that the CDA wasn’t meant to create a “lawless no-man’s-land on the Internet.”
“[I]t may be true that imposing any tort liability on [ModelMayhem] 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,” the 9th Circuit said in its May decision.

The 9th Circuit said that “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.”

Jane Doe No. 14’s case has attracted the attention of numerous Internet companies and organizations that sided with ModelMayhem, which noted in court briefs that the 9th Circuit’s earlier ruling will open the door for lawsuits against or have a “detrimental chilling effect” on internet services providers.

Friend-of-the-court briefs were delivered to the appeals court by Floor64, Facebook, Craigslist, Tumblr, the Computer and Communications Industry Association, The Internet Association and Care.com — all concluding that websites should be granted broad immunity to online intermediaries for harms arising from third-party content.

In its denial today, the 9th Circuit said that the full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.
“Further petitions for rehearing and rehearing en banc shall not be entertained,” the 9th Circuit said.

The 9th Circuit order today leaves likely the possibility for a U.S. Supreme Court challenge over the interpretation of Section 230.

Industry attorney Lawrence Walters of Walters Law Group, who is not a party to the case, told XBIZ that "Supreme Court review would be potentially helpful to clarify the scope of this newly identified duty-to-warn by online service providers who are otherwise protected by Section 230 immunity."

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