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Model's horrific rape case may limit crucial online free speech law

Networking website owners may be liable for not warning users of predators

Analysis A terrifying case in which an aspiring model was drugged and raped may result in a limit being placed on a critical piece of online free speech legislation in the US.

The unnamed woman was contacted through the website Model Mayhem and offered an audition. That audition turned into a nightmare when two men – Lavont Flanders and Emerson Callum – drugged her, had sex with her, filmed it and then sold the resulting footage.

Flanders and Callum are serving life sentences, having been convicted in 2011 on 32 counts related to drugging and raping women. But "Jane Doe" is suing the parent company of Model Mayhem, Internet Brands, for not warning her about the two men, claiming that the company had prior knowledge of their activity.

Internet Brands asked for the case to be dismissed, citing Section 230 of the Communication Decency Act: a section which gives online publishers immunity from being prosecuted for third-party content. The court agreed and dismissed the case.

However, Jane Doe appealed, and last week the 9th Circuit Appeals Court struck down the court's decision [PDF], allowing the lawsuit to continue.


Section 230 has become a critical piece of legislation for online companies including social media giants Facebook and Twitter, review site Yelp, and online ads site Craigslist. It shields them from having to be responsible for everything its users write.

There are two limits to that immunity – federal crimes and intellectual property theft – but the section's importance has led to strenuous efforts to prevent other limits being placed on the legislation. The section reads:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Jane Doe's case against Internet Brands, however, is an unusual one in that her claim is not based on the company being liable for information published on the site, but instead on a claim that the company was aware of Flanders' and Callum's behavior and did not sufficiently warn or protect their users – of which she was one – under California's "failure to warn" legislation.

Jane Doe posted her details onto the website to be contacted. And the website's entire business was dependent on the same information from hundreds of potential models. As a result, she argues, she has a "special relationship" with the site.

Neither Flanders nor Callum posted information on the website, but they used it to contact models for "auditions." Jane Doe claims that Model Mayhem knew from external third parties that the two men were using the service to lure women to such meetings – and as a result the site should have warned her about them.


The court of appeals makes no judgment over whether the website actually knew about the men's activity or whether it failed to warn their users, but it did decide that Section 230 was not sufficient reason to throw out the lawsuit. And that in itself is a significant shift in the almost-blanket legal protection afforded websites.

The implications are potentially huge. It means that online publishers – pretty much any website that allows for significant user interaction – could be held liable for failing to protect those users if they can be shown to have prior knowledge of others misusing the service.

Although websites like Twitter and Facebook have extensive compliance and abuse teams, the decision by the 9th Circuit adds an element of legal responsibility. Although this Jane Doe case is particularly horrific, the decision could be used to extend beyond rape to include other crimes such as hate speech.

The Ninth Circuit is pretty solid on its decision – which covers California and therefore many of the largest user-focussed websites. It originally decided that Section 230 did not apply back in 2014, but withdrew its decision when Internet Brands appealed. This latest decision [PDF] reiterates that original position. ®

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