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In 2011, an aspiring model we’ll call Jane Doe flew from Brooklyn to South Florida to meet a man she thought was a casting agent after talking to him on a website called Model Mayhem. Instead, she met up with Lavont Flanders, a former cop, and Emerson Callum, better known as the Jamaican porn star Jah-T. After they slipped her a Xanax, the two men filmed her rape for a porn series called Miami’s Nastiest Nymphos.
Doe was one of about 100 people who had been victimized by Callum and Flanders, who were sentenced to 12 consecutive life terms in 2012. But her story didn’t end with her predators’ convictions—that same year, she sued the company that owns Model Mayhem for knowing that rapists might be lurking the site and not warning her about it.
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At the time, it didn’t seem like she had much of a chance: Section 230 of the Communications Decency Act (CDA) means websites are very rarely liable for anything people post on them. The majority of experts agreed that the case would soon die as a result, and the fact that tech giants like Facebook, Craigslist, and Tumblr filed briefs in support of Model Mayhem didn’t seem to bode well for the plaintiff.
But in a surprising decision yesterday that one day could have reverberations across the internet, a three-judge panel in California decided the case will proceed. It’s the latest chapter in an ongoing debate about how much responsibility websites, apps, and sharing economy startups have when bad things happen to people while they’re using these services.
“Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet,” Judge Richard Clifton wrote in the panel’s decision.
Critical to understanding this case––and what makes it different from, say, someone suing Craigslist after buying a bicycle off a classified ad and getting in a crash while riding it––is a legal concept called failure to warn. Callum and Flanders were arrested in 2010 for pulling a similar rape scheme with a handful of victims, but the case proved difficult to prosecute, and they were released. Doe is alleging that Model Mayhem, knowing they were on the loose, should have warned users not to fall for similar scams in the future. The judges said that the CDA does not bar claims based on failure to warn, although they didn’t specify exactly what Model Mayhem was supposed to do.
“This is an important decision that will impact both users and service providers,” Jeff Herman, the sexual abuse attorney representing Doe, told VICE. “I think it’s fair to call this the internet accountability decision since websites are no longer free to ignore known safety risks without potential liability.”
Many First Amendment defenders say that if the CDA is challenged in any way, it could have a chilling effect on speech on the internet because companies will be unwilling to expose themselves to lawsuits over users preying on other users. To that, Judge Clifton said that making Model Mayhem liable would be only “marginally chilling.”
Eric Goldman, a law professor who specializes in tech issues and is a proponent of Section 230, says he doesn’t really see the case as a First Amendment issue, but rather one that could affect companies like Airbnb and Uber––both of which have faced accusations from users who say they were sexually assaulted. He said that eBay has claimed Section 230 immunity for 15 years, and that it makes sense that companies in the sharing economy do the same.
The decision could be devastating for dating apps, Goldman added.
“There are regulatory efforts to require online dating services to do mandatory screening of members,” he told VICE. “If coupled with potential failure-to-warn liability, it would put the online dating services in an untenable position. They would be charged with knowledge about everything they learn in the screenings, yet in theory they would be obligated to disclose every bit of screening information about each member to ensure they satisfied an obligation to warn other members about any potential problem, no matter how remote. I don’t quite know online dating services would manage that risk, to be honest with you.”
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