United States: Ninth Circuit: CDA Does Not Bar Claims For Failure To Warn

Robert L. "Rob" Rogers III is a Senior Counsel in our Orlando office.

Reversing the dismissal of a negligent failure to warn action, the Ninth Circuit Court of Appeals carved out a key exception to the immunity afforded to website operators under the Communications Decency Act (CDA).

In Jane Doe No. 14 v. Internet Brands, Inc., a model who used the ModelMayhem.com website operated by Internet Brands claimed that two men obtained her contact information from the website, lured her to an "audition," raped her and filmed the rape. She also claimed that Internet Brands knew since 2008 about the men – but never warned its users.

The District Court dismissed the failure to warn count on grounds of CDA immunity. The Ninth Circuit reversed on grounds that the plaintiff "does not seek to hold Internet Brands liable as a 'publisher or speaker' of content someone posted on the Model Mayhem website."

The CDA immunizes website operators for statements posted by others by prohibiting "providers of interactive computer services" from being treated as "the publisher or speaker of any information provided by another information content provider."

In Jane Doe, however, the Ninth Circuit refused to apply CDA protection to Internet Brands because the CDA "bars only liability that treats a website as a publisher or speaker of content provided by someone else" and does not shield operators from their own harmful statements.

The decision contradicts cases holding that the CDA bars actions for failure to warn or protect, as well as cases immunizing operators for their exercise of traditional editorial functions like deciding what content to publish or withdraw. Few activities are more traditional editorial functions than an operator's decision to post or not post warnings on its website.

Jane Doe suggests that websites may now need to expend resources investigating thousands of complaints from users to determine which merit warnings to users. Furthermore, by making such warnings, operators risk liability for defamation to the subjects of those warnings.

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