Does Knowledge Create a Duty to Warn?

A young model who was contacted, solicited by a “modelling company” via the site Model Mayhem and was subsequently drugged, sexually assaulted and filmed, has received permission to pursue her case.

“Jane Doe” was raped in 2011.  Months later, she was contacted by the FBI and learned that other women had been victimized the same way by the same people in the past.  In fact, not only had this happened to other women, but the owners of Model Mayhem were aware of this and the ongoing criminal investigation.

Not, of course, that she found out about the criminal investigation or the prior knowledge through advisory warnings or any attempt to safeguard users.  The information only became available in the course of a court battle between Internet Brands (who acquired Model Mayhem in 2008) and the original owners.  Defending themselves against a claim for money owed on the acquisition, Internet Brands complained that the owners had failed to disclose the fact of the ongoing investigation, something that could expose Internet Brands to civil liability.  Protecting themselves, sure.  Protecting site users?  Not so much. 

So Jane Doe began an action against Internet Brands for $10 million for failure to warn.  In response, Internet Brands invoked s.230 of the Communications Decency Act which provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others. 

In a September 2014 decision, Justice Clifton distinguished between the intent of the clause – to protect sites from being held responsible for user-generated content – and the substance of Jane Doe’s claim. That substance focusses on the special relationship between the site and its users and the fact that Internet Brands had knowledge about the criminal investigation and decided not to disseminate any warning to users.  Accordingly, Clifton decided that the case should go forward, leaving the lower court to determine whether the site had a duty to warn that it failed to meet. 

It is expected that this decision will be appealed.  Nevertheless, there is a moment here, an opportunity to further discuss some very important issues.  I have said before that we must ensure we don’t get sidetracked by technology and instead focus on the fundamental issue(s) in making law and policy....#nowisthetime