The scheme was absolutely horrible and disgusting, and so very internet.

In 2011, an aspiring model we’ll call Jane Doe flew from Brooklyn to South Florida to meet a man she thought was a casting agent after talking to him on a website called Model Mayhem. Instead, she met up with Lavont Flanders, a former cop, and Emerson Callum, better known as the Jamaican porn star Jah-T. After they slipped her a Xanax, the two men filmed her rape for a porn series called Miami’s Nastiest Nymphos.

Do people know any better today, after revelation of the scheme, after we know that just because something says so on the internet does not make it so? Not really. It’s hard to know what to believe when all you see are words on a screen. We love the words we want to believe. We believe what we want to believe.

Skepticism is considered an ugly trait, a negative and unpleasant perspective. Sure, we’ve come to realize that we didn’t win the lottery, aren’t related to a Nigerian prince and our email wasn’t randomly chosen by the IRS for a misspelled audit. At least some of us do, as many continue to get sucked in by absurd and obvious scams.

And so, when Jane Doe flew from Brooklyn to South Florida, on her own dime, because she got a response to her ad on a website called Model Mayhem, offering the opportunity to a woman on the internet who could scrape together enough cash to hop on a plane, some might have expected some greater due diligence on her part. But due diligence is skeptical, and she wanted to be a model, so she went. And was raped. And was filmed being raped.

The rapists were arrested, prosecuted, convicted and sentenced to 12 consecutive life terms, having perpetrated the same crime on about 100 women. A lot of women want to be models and trust the internet. But she now seeks compensation from the owner of the Model Mayhem website, Internet Brands.  In its defense, they raised Section 230 of the Communications Decency Act, the “safe harbor” that protected websites for being the medium by which others did wrong.

At the time, it didn’t seem like she had much of a chance: Section 230 of the Communications Decency Act (CDA) means websites are very rarely liable for anything people post on them. The majority of experts agreed that the case would soon die as a result, and the fact that tech giants like Facebook, Craigslist, and Tumblr filed briefs in support of Model Mayhem didn’t seem to bode well for the plaintiff.

The defendant’s motion to dismiss was granted by the district court based upon Section 230, which came as no surprise.  What is surprising is that the Ninth Circuit reversed, but then, the basis for its reversal included a critical allegation that distinguishes the case.  The plaintiff alleges that Internet Brands had actual knowledge from a third party that its platform was being used for the purpose of luring women to be raped.

Jane Doe’s claim is different, however. She does not seek to hold Internet Brands liable as a “publisher or speaker” of content someone posted on the Model Mayhem website, or for Internet Brands’ failure to remove content posted on the website. Jane Doe herself posted her profile, but she does not seek to hold Internet Brands liable for its content. Nor does she allege that Flanders and Callum posted anything to the website. The Complaint alleges only that “JANE DOE was contacted by Lavont Flanders through MODELMAYHEM.COM using a fake identity.” Jane Doe does not claim to have been lured by any posting that Internet Brands failed to remove. Internet Brands is also not alleged to have learned of the predators’ activity from anymonitoring of postings on the website, nor is its failure to monitor postings at issue.

Instead, Jane Doe attempts to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted and lured victims through Model Mayhem. 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.

The Circuit relied on California law that codified the Tarasoff rule:

California law imposes a duty to warn a potential victim of third-party harm when a person has a “special relationship to either the person whose conduct needs to be controlled or . . . to the foreseeable victim of that conduct.” Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 435 (1976), superseded by statute, Cal. Civ. Code § 43.92. Jane Doe alleges that Internet Brands had a cognizable “special relationship” with her and that its failure to warn her of Flanders and Callum’s rape scheme caused her to fall victim to it.

That the circuit refused to affirm the dismissal under Section 230 doesn’t mean that plaintiff will ultimately prevail. There remain difficult issues of fact to be proven, and substantial open questions of law, particularly relating to what constitutes a “special relationship” as would create a duty to warn. Jane Doe is still a very long way from winning.

The circuit’s rationale is legally sound, in the sense that just because something happened on the internet doesn’t mean all collateral causes of action magically disappear. But then, Section 230 isn’t so much a legal barrier, but a policy choice. Without it, the internet as we know it couldn’t exist. And if, as a matter of policy, website owners could be held liable for third party actions, absent an active co-conspirator relationship, the ramifications could be devastating to the internet.

Eric Goldman, a law professor who specializes in tech issues and is a proponent of Section 230, says he doesn’t really see the case as a First Amendment issue, but rather one that could affect companies like Airbnb and Uber––both of which have faced accusations from users who say they were sexually assaulted. He said that eBay has claimed Section 230 immunity for 15 years, and that it makes sense that companies in the sharing economy do the same.

The decision could be devastating for dating apps, Goldman added.

That Jane Doe’s rape was devastating to her is undeniable. The policy question, however, is whether the opportunity for criminals to use the internet as their platform for crime should put the viability of the internet at risk. Or should all users of the internet be imputed to know that its miracles also bring the potential for lies and terrible harm, without the need for each individual website to specifically warn every user that people, even on the internet, are still people, for better or worse?