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9th Tackles Duty to Warn in Model Mayhem Rape

PASADENA, Calif. (CN) - The 9th Circuit heard from both sides Wednesday in a case alleging liability of the Model Mayhem website after two of its users drugged and raped a woman by luring her to a bogus casting call.

A federal judge had previously dismissed the action under the Communications Decency Act, which limits the liability of a website's publisher for content posted by third parties - in this case, the victim's posting of her contact information.

The victim, known in court as Jane Doe, sued site owner Internet Brands in Los Angeles for negligent failure to warn.

Jeff Herman, her attorney, argued before a three-judge panel that the case at issue has nothing to do with Internet Brands' role as a publisher and that the CDA does not give Internet service providers "blanket immunity."

He said that Internet Brands had a duty to warn users of potential predatory danger because the company knew that the two predators had used the site to find victims before.

Daniel Collins, who represents Internet Brands, argued that the site's alleged duty has only to do with its status as the publisher, since the duty "is alleged to arise from the fact that we brought her information into the world without giving a warning."

Judge Richard Clifton said that the case at hand is in "an entirely different context."

"How is the CDA intended to protect your client?" he asked Collins. "What suggests that the policy does go further in a case like this?"

Clifton added that Internet Brands was not being asked to scrub its content, since the "problem is that predators were out there and could contact anybody who posted on your website."

"You could satisfy the duty to warn not by editing, but just by giving a warning," he said.

Pat Carome, who also represented the defendants, said that ruling in Doe's favor will produce a "chilling effect" that "would not be marginal."

U.S. District Judge Brian Cogan, of the Eastern District of New York and participating remotely, said that the case is a special one because "the company came into knowledge of these particular abusers."

"That doesn't happen all the time," he said. "I'm less worried about opening the floodgates than you are."

Carome said that one of the CDA's key purposes is "to remove disincentives for service providers to engage in responsible self-policing and monitoring of their services." He invoked Craigslist as an example of a company that engages in such practices.

"Model Mayhem was a platform that allowed Jane Doe and these two miscreants in Florida to communicate with one another," he said. "That was all it did."

"We also know that the proprietor knew about the miscreants in Florida," Clifton pointed out.

In his rebuttal, Herman said that Carome's disincentive argument "doesn't make sense" to him.

"They're saying that if there's liability, then there's a disincentive to warn potential victims of harm," he said. "But that's exactly what happened here."

He continued: "They're arguing that if they're liable for that then they're not going to warn them in the future, but we already know right now that they're not warning them."

Herman added that there was no requirement for Internet Brands to police themselves, but "where they do have specific information on their own that the user doesn't have that puts them in danger, then there is the duty to warn."

"We're not looking to expand this to policing everything that's put on the website," he said.

Clifton said that this case "is going to open the door to numerous duty-to-warn cases."

"We know that there are predators out there," he said. "Does that mean that everyone has to have a provident notice somewhere saying 'Use this website at your own risk'?"

The judge continued: "I can imagine Internet service providers being concerned and asking, 'How do we protect ourselves?'"

Herman is based in Boca Raton, Fla. Collins is with Munger Tolles in Los Angeles, and Carome is with Wilmer Hale in Washington.

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