Free for a Fee

You recall the Ninth Circuit’s Doe v. ModelMayhem (Doe #14 v. Internet Brands) ruling from earlier this year. It held that a website couldn’t invoke Section 230 against a claim that the site should have warned its users about potential risks of offline harm. Internet Brands requested another rehearing by the panel or a rehearing en banc, and the Ninth Circuit declined the request earlier this week. I’m not sure if the defense will now appeal to the U.S. Supreme Court or challenge the lawsuit on its (lack of) merits back in the district court.

Many experts still think that it’s almost impossible for plaintiffs to prove that websites owe a special duty to their users, in which case failure-to-warn claims will fail on prima facie elements. If that’s where we’re headed, Section 230 is an appropriate and more efficient way of achieving the same outcome (see Doe v. MySpace). There are a virtually infinite number of potential risks that a website could warn users about, and plaintiffs can always find *something* that wasn’t disclosed. Meanwhile, websites will feel more pressure to further lard up user agreements with progressively less meaningful disclosures on the chance they might dissuade future failure-to-warn cases. If you think online user agreements are already too long and filled with too many irrelevant disclosures, you ain’t seen nothing yet.

Some failure-to-warn cases are already in the court system, and the ModelMayhem ruling gave new life to those cases. Today’s ruling is one of those cases.

Case citation: Beckman v. Match.com, No. 13-16324 (9th Cir. Sept. 1, 2016)

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/09/unfortunate-expansion-of-failure-to-warn-exception-to-section-230-beckman-v-match.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.