One must also question the Ninth Circuit’s dismissal of the potential chilling effect of its decision and its impact on the operation of websites as “marginal.” The court seemed reassured in reaching this conclusion by the fact that Internet Brands could have protected Doe, and thereby avoided the lawsuit, merely by sending a single e-mail or posting a single message on its website about two specific persons known to have been accused of violent crimes.
But the implications and potential burdens imposed on website operators by the decision are far-reaching and considerable.
Second, Internet Brands knew before Doe was raped about “the potential for civil suits arising from the activities of Flanders and Callum” in relation to other models who had posted profiles on the Model Mayhem website.
It is certainly true that the CDA does not immunize website operators from liability for defamatory statements that operators themselves post on their website. Courts in other circuits have long held that the CDA immunizes website operators for actions claiming that they negligently failed to protect website users from harm caused by other users. The CDA’s protections do not apply solely to defamation actions seeking relief for statements posted on websites by users. For example, in , the Third Circuit held that the CDA immunized AOL from liability for negligently failing to police its services and protect one of its users from another user who transmitted a “punter” signal that disabled the plaintiff’s computer, even after the plaintiff complained to AOL about the activity., the Fifth Circuit held that the CDA immunized My Space from liability for negligently failing to “institute and enforce appropriate security measures” that would have prevented an underage user from meeting and being sexually assaulted by another user., the U. District Court for the District of Nevada held that the CDA immunized from liability for negligently failing to warn and protect a user “from individuals trolling the website to further criminal activity,” including an alleged “serial murderer” who brutally attacked the plaintiff after the two met through the website. Other circuit courts have construed the CDA broadly to immunize website operators from liability for their “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content.” Few decisions could be more quintessentially related to Internet Brands’ traditional editorial functions than its decision about whether to post a message on about possible harm posed to users by Flanders and Callum. Even Doe’s own reasoning leads inescapably to the conclusion that the burden posed by the court’s decision is more than “marginal.”Take first only the facts alleged by Doe against Internet Brands. She alleges, not that Internet Brands knew that Flanders and Callum had actually drugged and raped other users of the Model Mayhem website, but instead that Internet Brands knew that other members of the website had Although Flanders and Callum had been arrested on charges related to such crimes in 2007, those charges were dropped, and Flanders and Callum were not actually convicted of drugging and raping any women until December 2011.