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

Robert Rogers III is Senior Counsel in Holland & Knight's Orlando office

Communications Decency Act May Be Exploited by Plaintiffs Seeking to Transfer Liability to Website Operators for Injuries Inflicted by Users of Their Websites.


  • In reversing the dismissal of a negligent failure to warn action, the Ninth Circuit Court of Appeals appears to have carved out an exception to the immunity afforded to website operators under the Communications Decency Act (CDA).
  • On its face, Jane Doe No. 14 v. Internet Brands, Inc. holds only that the CDA does not shield a website operator from liability for failing to warn website users about known violent crimes that others are using the website to commit. Going forward, plaintiffs may be tempted to extend the reach of the court's holding in Jane Doe to chip away at the strong immunity Congress has provided website operators under the CDA.

In reversing the dismissal of a negligent failure to warn action, the Ninth Circuit Court of Appeals appears to have carved out an exception to the immunity afforded to website operators under the Communications Decency Act (CDA). This exception may provide an opportunity for exploitation by plaintiffs who seek to shift liability to website operators for injuries caused by others who use their websites. See Jane Doe No. 14 v. Internet Brands, Inc., 2014 WL 4627993 (9th Cir. Sept. 17, 2014).

Plaintiff Claims Website Operator Failed to Warn Users About Rape Scheme

Jane Doe involves disturbing allegations about the rape of member of a ModelMayhem.com, a networking website for models operated by defendant Internet Brands. The plaintiff, an aspiring model who listed contact information on the Model Mayhem site, claims that non-defendants Lavont Flanders and Emerson Callum obtained her contact information from the website, contacted her in 2011 and falsely claimed to be talent scouts. She further claims that they lured her to an "audition," drugged her, raped her, and filmed the rape with the intent to sell the recording as pornography. The plaintiff also claims that Internet Brands had known since 2008 that Flanders and Callum had been drugging, raping and filming the rapes of other ModelMayhem.com models – but never warned the models who posted profiles on the website about Flanders' and Callum's activities.

Dismissal Reversed on Grounds That Failure to Warn Action Is Not Barred by the CDA

In her lawsuit against Internet Brands, the plaintiff asserted a single count for negligent failure to warn under California common law. The U.S. District Court for the Central District of California dismissed the plaintiff's action against Internet Brands with prejudice solely on grounds that Internet Brands was immune from the plaintiff's claim under the CDA. But on appeal, the Ninth Circuit Court of Appeals reversed, holding that the plaintiff's failure to warn action was not barred by the CDA because 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 Ninth Circuit Court's decision in Jane Doe turned on facts that appear infrequently in cases in which website operators seek defensive protection under the CDA, including that the plaintiff was the victim of a violent crime and the persons who most directly harmed the plaintiff (Flanders and Callum) never posted content on the website at issue. However, its holding could be cited as support for claims that seek relief in circumstances more typically before the court in cases involving the CDA.

CDA Protects Website Operators From Visitors' Posted Statements, But Not Failure to Warn

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" (47 U.S.C. §230(c)(1)). Courts have long held that website operators are not liable for defamatory or offensive posts by website users merely because they invite visitors to post potentially defamatory or offensive statements. Such protections apply even to website operators who refuse to remove offensive or defamatory content from their sites.

In Jane Doe, the Ninth Circuit Court refused to apply CDA protection to Internet Brands because the plaintiff did not seek relief based upon statements published on its website by Flanders or Callum. In fact, Flanders and Callum did not post anything on the Model Mayhem website, but instead used statements posted on the website by the plaintiff as a means to contact and harm her. The plaintiff further claims that the website operator knew that Flanders and Callum were using the Model Mayhem website to connect with potential rape victims for years before she was attacked. She seeks relief against Internet Brands only for failing to post a notice on its website warning users about Flanders and Callum.

In reversing the dismissal of the plaintiff's action, the Ninth Circuit Court held that the CDA does not bar her failure to warn action against Internet Brands because she sought relief only for warnings that Internet Brands could have made, but instead chose not to. The CDA "bars only liability that treats a website as a publisher or speaker of content provided by someone else" and has never shielded website operators from their own harmful statements. "A post or email warning that Internet Brands generated would involve only content that Internet Brands itself produced. An alleged tort based on a duty that would require such a self-produced warning therefore falls outside of [the CDA]."

On its face, Jane Doe holds only that the CDA does not shield a website operator from liability for failing to warn website users about known violent crimes that others are using the website to commit. Unfortunately, however, plaintiffs probably will be tempted to try to extend its reach beyond that, to sidestep the strong immunity Congress has provided website operators. It remains to be seen whether the Ninth Circuit and other courts will continue to chip away at the strength of the CDA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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