One must also question the Ninth Circuit’s dismissal of the potential chilling effect of its decision and its impact on the operation of websites as “marginal.” The court seemed reassured in reaching this conclusion by the fact that Internet Brands could have protected Doe, and thereby avoided the lawsuit, merely by sending a single e-mail or posting a single message on its website about two specific persons known to have been accused of violent crimes.
But the implications and potential burdens imposed on website operators by the decision are far-reaching and considerable.
The court also places mistaken emphasis on Flanders and Callum’s decision to communicate directly with Doe instead of through the Model Mayhem website. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.339 F.3d 1119, 1124 (9th Cir.
Its holding should also be questioned for suggesting that website operators will be only “marginally” affected by its ruling.
For years, courts across the United States have consistently held that the Communications Decency Act (CDA) immunizes website operators from liability for negligently failing to protect website users from other website users.
However, in a recent opinion reversing the dismissal of a negligent failure to warn action against modelmayhem.com, the Ninth Circuit Court of Appeals carved out a dangerous exception to this CDA immunity that may be exploited by plaintiffs who seek to shift liability to website operators for injuries caused by other website users.
Even Doe’s own reasoning leads inescapably to the conclusion that the burden posed by the court’s decision is more than “marginal.”Take first only the facts alleged by Doe against Internet Brands.
Plaintiffs will therefore probably be tempted to try to extend the reach of the Ninth Circuit’s holding beyond the unique facts of , Doe v. 2008) (affirming the dismissal with prejudice, based on immunity under the CDA, of negligence and gross negligence actions against My Space for failing to enforce procedures that would have prevented the plaintiff from being sexually assaulted by another user); Carafano v.
Second, Internet Brands knew before Doe was raped about “the potential for civil suits arising from the activities of Flanders and Callum” in relation to other models who had posted profiles on the Model Mayhem website.
In other words, Internet Brands knew before Doe was drugged and raped that other models had claimed they were drugged and raped by Flanders and Callum.
Therefore, before Internet Brands could have e-mailed or posted any statement about Flanders and Callum, it would have had to investigate the claims made by other users.
Such an investigation would have required an exertion of time, energy, and financial resources by Internet Brands that would have been more than “marginal.” Further- more, even if Internet Brands had concluded after such an investigation that Flanders and Callum had actually committed the crimes, Internet Brands would have had to weigh the risk of exposing itself to liability for potential defamation claims made about Flanders and Callum to its users).