Doe v. Internet Brands, Inc.
Issue
Whether § 230 bars a California negligence failure-to-warn claim against a platform that had actual independent knowledge of an ongoing offline predatory scheme targeting its users, where the plaintiff's claim did not seek to hold the platform liable as the publisher of any user-generated content.
What Happened
Model Mayhem (modelmayhem.com) was a networking website for professional and aspiring models with over 600,000 members. Internet Brands purchased the site in 2008. At the time of the purchase, Internet Brands learned that two men — Lavont Flanders and Emerson Callum — had been using the site since at least 2006 to identify targets for a rape scheme. Posing as fake talent scouts using fabricated identities, they would lure aspiring models to south Florida for auditions, drug them with a date-rape drug, rape them on videotape, and sell the recordings as pornography. Internet Brands knew of the scheme but did not warn its users. Jane Doe, an aspiring model who posted a profile on Model Mayhem, was subsequently lured to Florida by Flanders and Callum, drugged, raped, and recorded. She sued Internet Brands for negligently failing to warn her about the scheme. The district court dismissed the complaint as barred by § 230. The Ninth Circuit reversed in an opinion by Judge Clifton. The court held that § 230(c)(1) applies only to claims that seek to hold a platform liable as the "publisher or speaker" of third-party content. Jane Doe's failure-to-warn claim did not seek to hold Internet Brands liable for anything any user posted — Flanders and Callum had not even posted their own profiles. The duty to warn arose from Internet Brands' own independent knowledge of an offline criminal scheme acquired from an outside source, entirely apart from any editorial decisions about user content. Because the claim did not implicate the platform's publishing function, § 230 did not bar it.
Why It Matters
The most significant post-Zeran departure from a maximalist reading of § 230 at the circuit level. Doe v. Internet Brands established that § 230(c)(1) is limited to claims that would hold a platform liable as a publisher or speaker of third-party content — it does not reach claims grounded in the platform's own first-party conduct or independent knowledge. The case created a doctrinal fault line: the Second Circuit in Herrick v. Grindr declined to apply the reasoning where the platform's failure to act was itself treated as a failure to remove content.
Related Filings
Other proceedings in the same litigation tracked by this monitor.
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