This month, the U.S. Court of Appeals for the Ninth Circuit limited the ability of websites and other online services to use Section 230 of the Communications Decency Act to shield themselves from failure-to-warn lawsuits arising out of the offline conduct of their users. Although the circuit court’s opinion in Beckman v. Match.com, No. 13-16324 (9th Cir. Sept. 1, 2016) is unpublished, it creates a potentially troubling gap in the immunity afforded to online services from suits based on the conduct of their users.
Communications Decency Act
The CDA creates federal immunity to any cause of action that would make online service providers liable for information originating from users of the service. Specifically, Section 230(c)(1) of the CDA states that “ [n]o 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.”1 The CDA defines an interactive computer service as “any information service, system, or access software provider that provides or enable computer access by multiple users to a computer server.”2 It further defines an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”3 Internet bulletin boards, microblogging sites, user-generated video sites, consumer-review sites and spam reporting services have all been found to be “interactive computer services” that are afforded publisher immunity for their users’ statements by Section 230 of the CDA.
Background and District Court Decision
Mary Kay Beckman met Wade Mitchell Ridley on the online dating service Match.com and briefly dated him. After Beckman ended the dating relationship, Ridley brutally attacked her, repeatedly stabbing and kicking her. Beckman suffered severe physical injuries requiring several hospitalizations and medical procedures.
Beckman filed a complaint seeking $10 million in compensatory damages against Match.com, asserting, among other claims, a negligence claim based upon Match.com’s failure to warn her about Ridley. The district court dismissed Beckman’s complaint, finding that “Match.com is immune pursuant to the CDA immunity.”4 The district court noted that “[t[he problem with plaintiff’s attempt to focus on Match.com’ s alleged failure to warn … is that all of Match.com’s conduct must trace back to the publication of third-party user content or profiles[,]” and this activity was “ clearly immune under the CDA.”5
Ninth Circuit Decision
The Ninth Circuit reversed dismissal of the negligent failure to warn claim, finding that the claim did not seek to impose liability on Match.com as a publisher or speaker, but for its failure to act after allegedly learning of the foreseeable risk posed by Ridley from complaints the company had received about him. In reaching this conclusion, the Ninth Circuit cited its decision in Doe No. 14 v. Internet Brands Inc., 824 F.3d 846 (9th Cir. 2016), in which it similarly held that CDA Section 230 could not be used at the pleading stage to dismiss a negligent failure-to-warn complaint.
In Internet Brands, a plaintiff brought a negligent failure to warn claim against a networking website for models, which two users fraudulently used to identify and lure targets for a rape scheme. There, the Ninth Circuit held that at the pleading stage, the CDA did not bar a negligent failure-to-warn claim against a website owner where the complaint alleged the site operator had received information “from an outside source about how third parties targeted and lured victims” through the website.6 The Ninth Circuit found it significant that the plaintiff’s claim did not seek to impose liability on the website owner as a “publisher or speaker” of third-party content on its website or require the website owner to remove or monitor any such content.7 Moreover, the Ninth Circuit concluded that any warning that a website owner might be required to provide under state law would be produced by the owner and, therefore, not considered third party content, bringing the warning outside of the scope of the CDA.8
Applying Internet Brands, the Ninth Circuit held that “when a defendant has actual knowledge of a specific harm, that defendant has a duty to warn known, foreseeable victims of a known, foreseeable harm,” even if the defendant is an interactive computer service provider.9 Based upon the representation of Beckman’ s counsel at oral argument that Beckman could allege that Match.com had actual knowledge that Ridley had identified and assaulted other women using Match.com’s website prior to his attack on Beckman, the Ninth Circuit reversed the dismissal and directed the district court to provide Beckman with an opportunity to amend her complaint. The Ninth Circuit did, however, affirm dismissal of other state and federal claims against Match, finding that the CDA barred those claims because the “basis for each of those claims is Match’s role as a publisher of third-party information.”10
Takeaways: New Risk of Suits and Chilling Effect on Websites
The implications of the Internet Brands and Beckman opinions are significant, creating the potential risk of liability for online services in which offline contact between users is foreseeable because it is part of the services’ business models. The reasoning upon which the cases rely, however, is questionable. In its effort to remove the negligent failure-to-warn claims from the ambit of CDA immunity, the Ninth Circuit makes a seemingly arbitrary distinction. The plaintiffs’ claims in both cases stem from the defendants’ role as the publisher of third-party content. But for this role, the defendants would not be subject to any liability, including liability for the offline conduct of one of its users. Put another way, under the plaintiffs’ theories, it was the defendant’s role as publisher of the bad actors’ content that gave rise to the publishers’ alleged duty to warn. Thus, it seems somewhat contradictory that the CDA protects a company from the defamatory or harmful content posted by a user on its website or service, but not from failing to provide warnings about that same content or how one of its users might choose to utilize that content.11
Equally questionable is the court’s rationale for allowing the negligent failure-to-warn claims to survive a motion to dismiss. A negligent failure to warn is premised on the existence of a special relationship between the parties. Courts have generally held that a paid membership or subscription to a website or online service without more does not establish a special relationship that would give rise to an independent duty. In Internet Brands and Beckman, the Ninth Circuit did not find that a special relationship existed between the online services and their members and/or subscribers, yet still found that there was a duty to warn on the part of the services.
For now, the Internet Brands and Beckman opinions create a risk of suit for online services that received complaints or other information about users’ dangerous conduct. Significantly, these opinions arose following challenges at the pleadings stage and did not address the merits of the plaintiffs’ failure to warn claims based on the facts of each case. But companies that seek to avoid such suits altogether will need to assess complaints or information obtained from background checks and other sources (e.g., screening processes, warrant requests, etc.) on an individualized basis and determine whether to cancel or suspend a user’s account, or take the more affirmative step of warning other users who it can foresee may be in contact with them. Ironically, companies that opt to cancel or suspend a user’s account will be doing just what the Ninth Circuit stated in Internet Brands that a negligent failure-to-warn claim would not require companies to do — remove third-party content from their website or service. If a company does affirmatively warn users, it will need to exercise care to ensure the warnings are factual, such as informing the warned persons that the other user’s account has been terminated, to limit the potential exposure to defamation and libel claims by the parties against whom the warnings were issued.
Congress enacted Section 230 of the CDA to protect speech on the internet. The Internet Brands and Beckman opinions severely limit that protection and threaten to bring about the chilling effect on websites and online services that Congress wanted to prevent.
Published in Law360 on September 23, 2016.
147 U.S.C. § 230(c)(1).
247 U.S.C. § 230(f)(2).
347 U.S.C. § 230(f)(3).
4 Beckman v. Match.com, No. 2:13-cv-97 JCM (NJK), Order, at 10 (D. Nev. May 29, 2013).
5 Id. at 7, 8.
6Doe No. 14 v. Internet Brands, Inc., 824 F.3d 846, 851 (9th Cir. 2016).
9Beckman v. Match.com, No. 13-16324, at 3-4 (9th Cir. Sept. 1, 2016).
10See id. at 2.
11The Ninth Circuit’s alternative basis for not applying CDA immunity to negligent failure to warn cases is similarly dubious. Finding that CDA immunity does not apply to warnings that online services may be obligated to provide ignores the fact that the underlying harm in the Internet Brands and Beckman cases arises not out of the content of non-existent warnings but from the third party content that is actually posted on the websites.