But if a large scale website with hundreds of millions of users routinely gets dozens or hundreds of potential warning РІР‚СљtipsРІР‚Сњ a dayРІР‚вЂњnone of them verified, most of them not credibleРІР‚вЂњexactly how would the panel like the website to proceed?Р”Р‡undamentally, this panel seems to treat warnings as trivial and low-cost to give and helpful to users. If the tip at issue was a once-in-a-decade type event, then a warning email to the entire userbase might not be too much of a burden (although it might also be so idiosyncratic that the warning isnРІР‚в„ўt much use). Third, the panel doesnРІР‚в„ўt appear to appreciate how many third party warning РІР‚СљtipsРІР‚Сњ a website receives (not even considering how many more tips websites may get after this ruling in an attempt to game the site or this opinion). Test yourself: could ModelMayhemРІР‚в„ўs user agreement simply say РІР‚Сљbad things sometimes happen to our usersРІР‚Сњ? Or does the panel expect more precise warnings? Perhaps individualized warnings about each РІР‚СљknownРІР‚Сњ risk? РІР‚СљPosting on a notice on the websiteРІР‚Сњ and an email to ModelMayhemРІР‚в„ўs userbase is apparently the same thing to the panel, but we know that thereРІР‚в„ўs a big difference in the logistics and possible efficacy of those alternative means of sending notice. Second, the panel canРІР‚в„ўt decide how ModelMayhem should provide notice to users.

Was the tip from a credible source? Was it corroborated? Those facts seem quite important to measuring how much work itРІР‚в„ўd be to conduct an investigation. The panel doesnРІР‚в„ўt even know how ModelMayhem learned of the rapistsРІР‚в„ў activity. Three obvious problems:Р”Р‡irst, the panel says ModelMayhem wouldnРІР‚в„ўt need to РІР‚Сљconduct a detailed investigation.РІР‚Сњ WTF? Websites canРІР‚в„ўt just casually accuse third parties of criminal behavior. Internet Brands could have given a warning to Model Mayhem users, perhaps by posting a notice on the website or by informing users by email what it knew about the activities of Flanders and Callum. Any alleged obligation to warn could have been satisfied without changes to the content posted by the websiteРІР‚в„ўs users and without conducting a detailed investigation. The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes or monitors such content. Using a pseudo-textualist approach, the panel says DoeРІР‚в„ўs failure-to-warn claim does not treat ModelMayhem as the РІР‚Сљpublisher or speakerРІР‚Сњ of third party content because: This gives the panel an opportunity to screw up Section 230 law without changing the substantive outcome. However, because the district court dismissed the plaintiffРІР‚в„ўs case solely on Section 230 grounds, the panel addressed only Section 230. Based on these facts, IРІР‚в„ўm skeptical the plaintiff can make that showing. To hold ModelMayhem liable for failure to warn her about the rapists, the plaintiff will have to show she had a РІР‚Сљspecial relationshipРІР‚Сњ with ModelMayhem. This case will very likely fail eventually. It seems that everyone now agrees that ModelMayhem didnРІР‚в„ўt mediate any private communications between the victim and the rapists, so ModelMayhemРІР‚в„ўs sole involvement in the crime was (a) allowing the victim to publish information to the Internet, and (b) not issuing warnings about a risk it had been told about.

The plaintiff alleges that a third party told ModelMayhem that rapists were finding victims on the site, ModelMayhem didnРІР‚в„ўt warn its users of this РІР‚СљknownРІР‚Сњ risk, and the plaintiff subsequently became a victim of the rapistsРІР‚в„ў crimes.

Sadly, the new opinion didnРІР‚в„ўt really improve much.Р”Р„s you know, ModelMayhem is a website designed to match models with prospective gigs. The panel withdrew its initial opinion entirely and redid the case from scratch. Carafano and Batzel have required repeated clarifications from subsequent panels.Р”Р„nd then thereРІР‚в„ўs the ModelMayhem fiasco.

Yahoo opinion needed an amendment to scrub unfortunate dicta. required a 3 opinion ruling from a 3 judge panel, then an internally inconsistent en banc ruling, then a ruling that never violated the law at all. Why does the Ninth Circuit find Section 230 so baffling? Several of its precedential Section 230 rulings have been angst-fests.

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