<b><i>Online Extra</b></i> Ninth Circuit Agrees to Revisit Ruling in Model Rape Case

With urging from Facebook, Craigslist, eBay and others, the Ninth Circuit has agreed to reconsider a controversial ruling about website operators' duty to warn about potential harm by third parties.

A three-judge panel set new arguments in'Doe v. Internet Brands, after'ruling last fall'that the operator of a website for aspiring models could be sued for failing to warn they were being targeted by rapists.

A model going by the name of Jane Doe alleges that she was lured to South Florida by two men who drugged her, raped her and recorded the crime for a pornographic video. Doe says the men learned about her through her membership in Model Mayhem, a website featuring profiles of 600,000 aspiring models. Website owner Internet Brands was aware of the men's scam but failed to warn of the danger, Doe alleges.

Internet Brands has denied all of the allegations. But just forcing the company to mount a defense would have a chilling effect on numerous website operators, the web company amici curiae say. They count on the Communications Decency Act (CDA) to shield them 'from the risks, burdens, and uncertainty of lawsuits that would hold them liable for hosting or facilitating online exchanges of third-party information that may result in harm,' the amici say in a brief signed by Wilmer Cutler Pickering Hale and Dorr partner Patrick Carome.

Internet Brands, meanwhile, has brought in a Munger, Tolles & Olson team led by partner Daniel Collins, who argues that Doe changed her theory of liability at oral argument, resulting in the appellate court relying on an un-briefed legal theory.

The Ninth Circuit regularly convenes 11-judge panels to reconsider difficult cases. It's more unusual for a three-judge panel to reconsider its own unanimous decision. Arguments have been set for March 18.

Judge Richard Clifton wrote last fall that Doe 'does not seek to hold Internet Brands liable as a 'publisher or speaker' of content someone posted on the Model Mayhem website, or for Internet Brands' failure to remove content posted on the website.' Under those circumstances, the Communications Decency Act would not bar allegations of failure to warn under California law, Clifton wrote in the original opinion.

Stuart Mermelstein of Boca Raton's Herman Law had argued for Doe that the case is unique because Internet Brands had sued the previous owner of Model Mayhem for failing to disclose the criminal scheme, establishing its knowledge of the specific danger. 'There is nothing in the panel's opinion to indicate that its holding could be applied to create a general duty to warn stretching beyond the particular facts of the horrific scheme that Internet Brands knew targeted members of modelmayhem.com,' Herman had argued.

Scott Graham writes for The Recorder, the San Francisco-based ALM sibling of Internet Law & Strategy. He can be reached at'[email protected].

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With urging from Facebook, Craigslist, eBay and others, the Ninth Circuit has agreed to reconsider a controversial ruling about website operators' duty to warn about potential harm by third parties.

A three-judge panel set new arguments in'Doe v. Internet Brands, after'ruling last fall'that the operator of a website for aspiring models could be sued for failing to warn they were being targeted by rapists.

A model going by the name of Jane Doe alleges that she was lured to South Florida by two men who drugged her, raped her and recorded the crime for a pornographic video. Doe says the men learned about her through her membership in Model Mayhem, a website featuring profiles of 600,000 aspiring models. Website owner Internet Brands was aware of the men's scam but failed to warn of the danger, Doe alleges.

Internet Brands has denied all of the allegations. But just forcing the company to mount a defense would have a chilling effect on numerous website operators, the web company amici curiae say. They count on the Communications Decency Act (CDA) to shield them 'from the risks, burdens, and uncertainty of lawsuits that would hold them liable for hosting or facilitating online exchanges of third-party information that may result in harm,' the amici say in a brief signed by Wilmer Cutler Pickering Hale and Dorr partner Patrick Carome.

Internet Brands, meanwhile, has brought in a Munger, Tolles & Olson team led by partner Daniel Collins, who argues that Doe changed her theory of liability at oral argument, resulting in the appellate court relying on an un-briefed legal theory.

The Ninth Circuit regularly convenes 11-judge panels to reconsider difficult cases. It's more unusual for a three-judge panel to reconsider its own unanimous decision. Arguments have been set for March 18.

Judge Richard Clifton wrote last fall that Doe 'does not seek to hold Internet Brands liable as a 'publisher or speaker' of content someone posted on the Model Mayhem website, or for Internet Brands' failure to remove content posted on the website.' Under those circumstances, the Communications Decency Act would not bar allegations of failure to warn under California law, Clifton wrote in the original opinion.

Stuart Mermelstein of Boca Raton's Herman Law had argued for Doe that the case is unique because Internet Brands had sued the previous owner of Model Mayhem for failing to disclose the criminal scheme, establishing its knowledge of the specific danger. 'There is nothing in the panel's opinion to indicate that its holding could be applied to create a general duty to warn stretching beyond the particular facts of the horrific scheme that Internet Brands knew targeted members of modelmayhem.com,' Herman had argued.

Scott Graham writes for The Recorder, the San Francisco-based ALM sibling of Internet Law & Strategy. He can be reached at'[email protected].

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