Facebook, Other Sites Oppose Lawsuit Targeting Modeling Website

She was a 22-year old aspiring model from Brooklyn. Searching for a way to crack into the industry, she turned to ModelMayhem.com, a website that connects freelance models to casting agents, photographers and others in the business. She flew down to Miami to meet the agent she had met online and, upon her arrival, he drugged and raped her. Her brutal assault was filmed and posted on the porn website Miami's Nastiest Nymphos. She awoke bruised and disoriented in a motel room with no knowledge of how she got there.

The horrific story was not an isolated incident. Previous cases showed that around 100 women were drugged, assaulted and filmed by the two rapists behind Miami's Nastiest Nymphos. The men have been arrested and sentenced to 12 consecutive life terms.

Now, the woman identified only as Jane Doe No. 14 in her lawsuit is looking to sue ModelMayhem.com for failure to warn users of potential rapists on their website. A court ruling last week granted her the right to move forward with the trial, a decision which brings up questions of whether websites can be held legally accountable for sexual assaults that happen to their users in the offline world.

Websites like ModelMayhem.com are typically shielded from cases like this by the Communications Decency Act (CDA), a law that protects websites from liability for its users. The idea is that these sites are platforms only: to sue a website like Craigslist for an assault that happened as a result of a real-world meeting is like suing a phone book publisher if an assailant used the yellow pages to look up a person's location. The CDA has protected websites and apps like Facebook, Craigslist, Uber, Airbnb and OkCupid from legal repercussions, even as, in the case of some of these services, reports of assaults have continued to crop up.

When Jane Doe first appealed the case last year, it seemed unlikely that the judge would allow her to continue with the lawsuit because of the CDA, and more specifically, Section 230 of the law, which frees websites from such liability. Big name websites eBay, Facebook and Tumblr urged the court not to allow Jane Doe's lawsuit to go through on account for the chilling effect it might have on other internet businesses.

Facebook declined to comment for this story but pointed a reporter to several passages in its legal brief.

The company and other websites "have a substantial interest in the legal rules governing whether providers of interactive computer services may be subjected to lawsuits for alleged harms resulting from online exchanges of information," the brief stated. "The success of these online businesses-and the vitality of online media and online free speech generally-depends on their being shielded from the risks, burdens, and uncertainty of lawsuits that would hold them liable for hosting or facilitating online exchanges of third-party information that may result in harm."

The brief also stated that Facebook and other websites condemn "the violent acts perpetrated against [the victim] and applaud the criminal justice system for putting the perpetrators behind bars." But, the filing said, "the contemptibility of those acts does not justify an end-run around Section 230."

But the court stated that Section 230 does not allow websites to be free of all responsibility. "Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet, though any claims might have a marginal chilling effect on Internet publishing businesses," the court stated in its decision.

A vital piece to this case is that the two men behind the rape operation were arrested and charged in 2010, but released due to insufficient evidence. The pair went back to ModelMayhem.com to continue their scheme after their first arrest. Because of this previous arrest, Jane Doe may be able to sue based on the "failure to warn" concept: that the website should have somehow notified its users about the criminal complaint.

The fact that the website knew about these rape charges is indisputable. In fact, when the website was sold to its current owner, the company Internet Brands, the company tried to sue the original developers for not disclosing to them about the existence of this very case.

"This ruling is a refreshing departure from the deference judges usually show toward online service providers, but it is not a departure from the age old legal tenet of accomplice liability," said lawyer Carrie Goldberg, who specializes in internet privacy and sexual assault rights. "As a victims' rights attorney many of my most horrible cases involve 'I met him on the Internet.' Just as we would hold a homeowner liable if they knew their guest was inviting somebody over every day to be murdered, the same should be true of acts of exploitation happening on websites."

Eric Goldman, a law professor that focuses on tech, told Vice that he feels that dating apps and sharing-economy apps have the most to lose should the lawsuit successfully go through. He mentions that strengthening laws that required these websites to screen potential members could be burdensome to the services.

"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," he said. "I don't quite know online dating services would manage that risk, to be honest with you."

But Jamie Lee Williams, a lawyer at the Electronic Frontier Foundation, thinks that this case will have little impact on the laws set up to protect these online services.

"The court's decision was fact specific and stressed that any liability for failure to warn here would be based on information the website learned from outside sources, including a criminal complaint, not any information posted on its website," she said. "In other words, the court found that this is not a Section 230 issue. Any liability here does not arise from content posted on the website, which the court made clear." She says she feels that the scope of this case is small and has little to do with larger issues of the right to hold websites responsible for its users.

Whether or not the lawsuit will successfully go through is still up in the air. The case was sent back to the trials court, where it waits for a final ruling.

© 2016 The Washington Post