Model Mayhem: Ninth Circuit Puts a Dent in Website’s Immunity under Federal Law

October 27, 2014

Under 47 U.S.C. §230(c)(1) of the Communications Decency Act of 1996, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Under §230(e)(3), "[n]o cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section." Courts have uniformly held that this statute precludes any form of tort claim against internet sites related to third-party postings on the site. See, e.g., Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997); Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). The person posting the offensive matter is not protected, however.

Section 230 was enacted to facilitate the development of the Internet. Recognizing that website operators typically cannot practicably police what others post on their sites, the statute protects interactive websites from liability related to misuse by third parties, including liability for information posted by third parties. The statute was a reaction to a New York state court ruling that a website could be liable if it purported to police its site, but did not remove everything that was actionable–a holding which perversely encouraged websites to take a complete "hands-off" approach to monitoring what people posted.

Dirty Words

A recent federal court decision shows just how broad the statute's protection is. In Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014), the court held that a website called the "" was immune from liability for numerous third-party posts it refused to remove about a woman, one of the least offensive of which included her photograph and said:

THE DIRTY ARMY: Nik, this is Sara J, Cincinnati Bengal Cheerleader. She's been spotted around town lately with the infamous Shayne Graham. She has also slept with every other Bengal Football player. This girl is a teacher too!! You would think with Graham's paycheck he could attract something a little easier on the eyes Nik!

After the website refused repeated demands to remove the statements, the woman sued the website for defamation. The trial court refused to apply the immunity provided by the statute, holding that "the very name of the site, the manner in which it is managed, and the personal comments [the website operator posted on the site–none of which concerned the plaintiff] specifically encouraged what is offensive about the content of the site." (Jones v. Dirty World Entertainment Recordings, 840 F.Supp. 2d 1008, 1010-13 (E.D. Ky. 2012).) At trial, the jury awarded the plaintiff $38,000 in actual damages and $300,000 in punitive damages against the website.

The trial court judgment was reversed on appeal on the basis of Section 230. The Sixth Circuit Court of Appeals refused to adopt the "encouragement test" posited by the trial court and held that under the statute, it did not matter whether the website attracted or encouraged offensive posts; it could be liable only if it materially contributed to the actual offensive content of the post. (755 F.3d at 414.) Inviting people to say nasty things was not enough.

Mayhem in California

The Ninth Circuit Court of Appeals based in California, however, has not been as hospitable to Section 230 as have almost all other courts. In Barnes v. Yahoo, Inc., 570 F.3d 1096 (9th Cir. 2009), it rejected a Section 230 defense where a Yahoo employee repeatedly promised to remove content posted by the plaintiff's ex-boyfriend—nude photographs and fake solicitations for sex—but failed to do so. The court said that although the statute would protect the website from a "negligent undertaking" claim, it would not prevent a contractual claim for "promissory estoppel" based on the failure to perform in accordance with the promise. Thus, there is no duty to police the site or remove offensive material, when a complaint is received and assurance given that the material in question will be removed, it had better not be left on the website.

More recently, that same court held that a website could be liable if it negligently failed to warn a person of physical harm that might follow from relying on matters posted on the site. see Jane Doe No. 14 v. Internet Brands, Inc., 2014 WL 4627993, 12-56638 (9th Cir. Sept. 17, 2014).

The website "" is a networking site that allows models and aspiring models to post photographs and information. Two men used the site to lure the plaintiff model to a fake audition, where they drugged her, raped her, and filmed the rape for a pornographic video. According to the complaint, the website operator knew the website was being used for this nefarious purpose because it had sued the prior owners of the site for not telling it at the time of the purchase. Though the details are sketchy, presumably the two culprits had used the site in such a fashion on occasions before the sale and remained at-large to continue the scheme. When finally captured, they were convicted on numerous charges and received multiple life sentences. But not before the plaintiff, too, was victimized.

In her civil suit, the model claimed that Section 230 was inapplicable because she was not seeking to hold the website liable based on what was published on the site or for any failure to remove materials from the site, but "for failing to warn her about how third parties targeted and lured victims through Model Mayhem." Although the court did not decide whether such a negligent-failure-to-warn claim existed under the circumstances–a matter it left for future decision–it did hold that such a claim would not be barred by Section 230. Narrowly construing the statute, the court said, "[the model's] negligent-failure-to-warn claim does not seek to hold [the website] liable as a 'publisher or speaker of any information provided by another information content provider.' As a result, we conclude that [Section 230] does not bar the claim."

Bad Facts Make Bad Law

The old saying "Bad facts make bad law" seems to hold true in this case. The misconduct alleged was extreme, and the damages severe. But almost any website can be used for bad purposes, and anyone suffering harm could claim that the website should have warned of dangers that lurk if he or she uses or relies on something posted on the site.

Numerous instances exist where a Craig's List post resulted in theft, assault, or perhaps worse. Facebook could be used by pedophiles to establish illicit relationships with children. Craig's List and Facebook might not have the same degree of knowledge that was alleged in the Model Mayhem case, but is the decision a slippery slope toward further limitation of the Section 230 immunity? Craig's List, Facebook, and websites like them certainly know that their sites can be misused. Although Craig's List and Facebook provide some warnings, the question is, Does the law require such a warning and should it? How specific would the warning need to be? Certainly, the limitless boundaries of cyberspace permit such warnings, but websites already include lengthy terms of use and disclosures, which are seldom read. Throwing in a warning is unlikely to have much practical effect, and legally requiring it seems inconsistent with Congressional intent in enacting Section 230.