9th Circuit Resisting Efforts to Dilute CDA Section 230 ISP Immunity?

Section 230 of the Communications Decency Act (CDA) generally affords immunity for Internet Service Providers (ISPs) with respect to content posted by users on their websites. There have been various efforts by plaintiffs in lawsuits to chip away at this immunity, most of which have failed. Now along comes Doe v. Internet Brands, in which the plaintiff sought to convince the Ninth Circuit to circumvent CDA Section 230 immunity under a “duty to warn” theory.

Factual Allegations

The anonymous plaintiff, Jane Doe, alleged that she was a model who was enticed to travel to Florida by two men. The men drugged her, raped her, and then displayed this horrid event in a pornographic video.

Doe alleged that the two men initially found her by way of the website Model Mayhem, which she’d joined as a member. She asserted that Model Mayhem is a site that profiles hundreds of thousands of models, and that the owner of the site, Internet Brands, allegedly knew of the illegal scheme by the two men but nevertheless neglected to warn her of the potential harm.

Procedural Posture

After proceedings at the trial court level, the case was appealed to the Ninth Circuit. Some months ago, a usual three-judge panel for the Ninth Circuit ruled that Jane Doe could pursue her lawsuit because she was not seeking to hold Internet Brands liable for the content posted by someone else on the Model Mayhem website or because Internet Brands refused to remove content posted on the site. Accordingly, the panel found that Section 230 of the CDA was not operative to bar allegations of a failure to warn under California state law.

Since then, the Ninth Circuit has been asked to revisit the panel’s ruling. Indeed, heavyweights such as eBay, Facebook and Craigslist have submitted amici briefs urging reconsideration. They have argued that efforts to hold ISPs responsible for all sorts of potential harms would chill website operations, would be unduly burdensome, and would subvert the very immunity intended by Section 230 of the CDA.

When unhappy with a three-judge panel decision by the Ninth Circuit, the next step might be to seek en banc review by 11 judges of the Ninth Circuit, in order to try to obtain a larger judicial consensus to correct a fundamental error by the original three-judge panel. En banc review can be difficult to obtain. And if still not corrected, then a writ of certiorari can be filed with the U.S. Supreme Court — but the Supreme Court only considers a very small number of cases per year.

What’s Next?

Here, the very same three-judge Ninth Circuit panel has agreed to reconsider its original decision, with further arguments scheduled in mid-March. Without reading tea leaves too carefully, this could possibly indicate that the panel may seek to change its own decision — perhaps to hold that there is not a duty to warn that peels back the layers of the onion of CDA immunity.

Stay tuned.

Eric Sinrod (@EricSinrod on Twitter) is of counsel in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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