back to article Model's horrific rape case may limit crucial online free speech law

A terrifying case in which an aspiring model was drugged and raped may result in a limit being placed on a critical piece of online free speech legislation in the US. The unnamed woman was contacted through the website Model Mayhem and offered an audition. That audition turned into a nightmare when two men – Lavont Flanders …

  1. Adam 52 Silver badge

    Seems entirely reasonable to me. Common carrier rules are there to protect you from being liable for something you know nothing about. The allegation here is that they did know about the risk and chose to do nothing.

    1. Marketing Hack Silver badge

      I don't know. If the company knew of the POTENTIAL that someone might abuse the service to target vulnerable parties, then I don't see a problem. In that case there is not much difference from placing a classified ad in a newspaper and targeting respondents.

      If the website had reason to believe something nefarious was going on, then that is another issue.

      1. William 3 Bronze badge

        They were aware.

      2. anonymous boring coward Silver badge

        "prior knowledge of others misusing the service" is not the same as "potential".

        They choose the additional money over warning its users. That's lowlife behaviour.

        1. Triggerfish

          "prior knowledge of others misusing the service" is not the same as "potential".

          They choose the additional money over warning its users. That's lowlife behaviour.

          I'd want to see someone like that (if true) charged with culpability/ accessory.

  2. Peter Prof Fox

    Template: My safe social environment

    I drink in pubs. Proper pubs, not bars or restaurants. I expect the publican to maintain it as a safe space. Of course, under the influence, or by nature, people may get out of hand but they are managed by the customers and publican. There is no 'hands over ears' policy when some arse kicks-off.

    Possibly that's why I don't use, won't use, social media.

    15 years ago, when the Internet was edgy, screechers and shouters were welcome (unofficially welcomed with opened arms) to raise the profile of websites. I think the more mature of us might have moved-on. Perhaps some twitbook management might like to realise that the 10% at the bottom cause 50% rush-for-the-exit by the normals.

  3. Sebastian A

    This website contains content

    known to cause cancer in the state of California.

  4. Anonymous Coward
    Anonymous Coward

    law enforcement?

    So, if these guys were breaking the law and luring girls then there was an open police case, right?

    Oh there wasn't ? So the issue is that uncorroborated hearsay was not being spread via a website?

    If there was an open police case, then why were these guys still going about their business?

    1. dan1980

      Re: law enforcement?

      @jeremy3

      That's a really important point because it brings the question of what the standard of proof must be to warrant these actions.

      The assertion is that the website should have warned users about the activities of other users.

      Now, I don't know how this particular site works but the concept seems to be relatively straight-forward: freelancers (the models in this instance) advertise their services in an online directory and potential employers (likely photographers/studios) then contact them to arrange to engage their services.

      Such freelancer advertising sites abound and the concept is the same for developers as it is for models. Importantly, reputation can be a big issue her on both sides of the transaction.

      So, what is being claimed should have happened is that the site should have warned freelancers not to accept job offers from specific prospective employers due to prior conduct.

      That's a pretty big step so one would expect it would only be taken where there are proven problems.

      Which brings us back to the question of the standard of proof that is required and, as part of that, who has the burden of proof. After all, anyone can make allegations so what is the responsibility of the site if one user makes an allegation against another?

      Is the site responsible for conducting (at their expense) investigations? How would they?

      It's a problem, no doubt, but fact that these two were still operating means they hadn't been convicted of any crimes yet. And this is really an issue because it was criminal behaviour - not just paying someone late or not being professional or having a dirty studio.

      That's a big allegation for a website to publish to its users - what if it's wrong?

      I feel for this victim - I really, really do - and the criminals responsible were punished and could hardly be punished enough. But is the site really responsible for not publishing an unproven allegation?

      1. Neoc
        Unhappy

        Re: law enforcement?

        @dan1980:

        The sad part is, the site could have gotten around the problem by creating a "feedback" / "ratings" section for each model and agency. I don't know if they did (I'm at work and will not go visit that site on the company dime, thank you) but had they done so then the models could have bad-mouthed the agencies, the agencies could have bad-mouthed the models, without any proof, AND THE SITE WOULD BE IN THE CLEAR AS A CARRIER. It would have been up to the model and/or agencies to sue each other for defamation. And still the site would be clear of all this mud-slinging.

        Sad, sad statement on the state of the world, really.

        1. Stoneshop Silver badge
          FAIL

          Re: law enforcement?

          The sad part is, the site could have gotten around the problem by creating a "feedback" / "ratings" section for each model and agency

          "Neither Flanders nor Callum posted information on the website, but they used it to contact models for "auditions.""

          There's a flaw in your suggestion.

          There's also a flaw in Model Mayhem's site setup, in allowing access for unregistered viewers to rather sensitive personal information.

          1. Dr. Mouse Silver badge

            Re: law enforcement?

            "Neither Flanders nor Callum posted information on the website, but they used it to contact models for "auditions.""

            There's a flaw in your suggestion.

            There's also a flaw in Model Mayhem's site setup, in allowing access for unregistered viewers to rather sensitive personal information.

            This was my thought, too.

            I'm not sure exactly how the site works. It sounds like the equivalent of classifieds in a newspaper: The model posts an advert of themselves, including contact details, and potential clients contact the models outside the site. If this is the case, I'm not sure I believe the site should be held liable. I would expect the site to inform the police if they have reason to suspect people are misusing the site for criminal purposes, but they don't control the communication and, sadly, it's up to the models to be careful and accept the risk of meeting a stranger alone. I'm not blaming the model, but neither do I think the site is to blame in those circumstances.

            If the site provides the means of communication (web form or some such), and had been warned about these guys, then there is a stronger case. If this communication still didn't require registration, it's likely that all they could have done is inform the police, still, but there is a stronger link.

        2. hugo tyson

          Re: law enforcement?

          It's not clear from the report whether the "agencies" or indeed actual agencies had to be registered or vetted in any way. Is it?

      2. Sirius Lee

        Re: law enforcement?

        This is not a new problem - difficult, yes, but not new. Social workers faces a similar dilemma daily. A young mum or dad is thought to be abusing their child but there is no direct evidence. If social services intervene and separate a family with good intentions but unjustly that is damaging to the family and especially the child that is the target of the protection. If they do not and a child is left to be brutalized the consequences may not be known until that child is hospitalized or killed. Sadly there have been a number of case in the UK - one that concluded just last week - of parents/guardians beating and killing their children.

        Web sites are actors in our communities and we all deserve to be made aware of concerns about the behaviours of their members if the site provides a service if those concerns might lead to bodily harm. Of course there's a SWATTING problem. The answer is a process. Is it too difficult for a site to be able to present their concerns to a judge and obtain legal consent to alert other members to their concerns? May be not this exact process but it's not beyond the wit of man to devise a process that is able to increase our safety in this area.

    2. Franklin

      Re: law enforcement?

      "If there was an open police case, then why were these guys still going about their business?"

      One of them was a cop.

      They had a pattern: The cop would drug women and film his friend raping them. Eventually, word would get back to the police force he worked for. He'd be quietly fired, and go to work somewhere else.

      At one point in 2009, he was finally charged with rape. He was arrested, booked, and released on bail...during which time he committed additional rapes.

      1. Anonymous Coward
        Anonymous Coward

        Re: law enforcement?

        One of them was a cop.

        A rapist cop in ass-pounding prison... "now that's justice!"

    3. Anonymous Coward
      Anonymous Coward

      Re: law enforcement? @jeremy 3

      >If there was an open police case, then why were these guys still going about their business?

      A small thing called innocent unless proven guilty. Just saying, not passing judgement or making a knee jerk reaction.

      1. Adam 52 Silver badge

        Re: law enforcement? @jeremy 3

        Innocent unless... and freedom of speech are things you'd expect the court to consider when determining liability. You'd very much want a judge and not a jury making that decision. But that wasn't the argument here, hopefully that stage will come later.

    4. fandom Silver badge

      Re: law enforcement?

      "If there was an open police case, then why were these guys still going about their business?"

      If you had read all the way to the third paragraph you would have seen something like:

      "Flanders and Callum are serving life sentences"

      Well deserved if you ask me.

    5. Trigonoceps occipitalis

      Re: law enforcement?

      In the UK civil and criminal cases are decided on different criteria: balance of probabilities for civil, beyond reasonable doubt for criminal. I expect it is the same in the USA (Just ask OJ) so the fact that there is no criminal case extant only feeds into the balance of probabilities, it is not definitive.

  5. bazza Silver badge

    This could be an interesting problem for companies like Uber and AirBNB. They both rely on having only the vaguest of information concerning their drivers, passengers, landlords and guests to be profitable.

    If this case wins (and it should), Uber and AirBNB are not going to be able to fend off claims from robbed passengers, owners of trashed homes and attacked paying guests.

    Currently they rely heavily on being able to say that they'd been deceived by someone giving a fake ID or misrepresenting themselves. Well that wouldn't work anymore. They'd need to have a better idea of who their users really are.

    In fact, just like a taxi driver and hotel proprietor have to prove their identity to the local licensing authority. Just like the local authority would do a basic background check, would inspect the premises, vehicle, etc. Saying that they cannot be expected to do that from their far-off distant office is no excuse.

    That sounds a lot more expensive.

  6. Anonymous Coward
    Anonymous Coward

    A minus minus

    https://xkcd.com/325/

    Replace bobcat with rapist.

  7. msknight Silver badge

    A change of gear is needed

    Firstly, the case should win... on its own merits.

    This then throws the whole thing about comments and ratings on the fire.

    Let's face it... someone in one country can make a comment on a service hosted in another country, about a person or service in a third country.... who's laws apply, and what mechanisms exist for a service provider to police their own service?

    The international community has got to sort this mess out, IMHO. Also, include something traceable, (like a fixed IPv6 to the connection) so that once a service bans a user, they stay banned (for a period) rather than just signing up for another throwaway e-mail address and continuing on.

    The whole thing of ratings, comments, etc. is actually, utterly useless unless there is some mechanism of trust behind it... and currently, that doesn't exist, meaning that the whole comment and rating thing that's happening, is just a castle built on sand, IMHO.

    1. John Lilburne Silver badge

      Re: A change of gear is needed

      "who's laws apply,"

      Those engaged in harmful activity need to be stopped along with those that enable the behaviour.

      1. msknight Silver badge

        Re: A change of gear is needed

        There's your problem. One societies harmful behaviour is another societies hero.

        1. John Lilburne Silver badge

          Re: A change of gear is needed

          Idiot. Almost all societies have similar concepts of what is harmful to society.

  8. hugo tyson
    Unhappy

    Different law?

    This does seem separate from the protection afforded to common-carrier-like websites in that law, in that this is abusive readers/consumers of the site, who cause no change to its state -- not abusive speech published via/though/on the site. Tricky.

    It does suggest that reader accounts should strongly be vetted, in such cases, and contacts should be only through the site so that they are logged in an evidence-worthy fashion. Otherwise it's just like telling Facebook everything with entirely public access.

  9. William 3 Bronze badge

    Liability & duty of care

    You can't wash your hands of those just because it's on the Internet.

    This site appears to be nothing more than an online version of an employment agency.

    If you visited an employment agency you'd expect them to do due dilligence on the employers they are placing you with.

    If you were to be raped at that employers then the employment agency couldn't just walk away and say "nothing to do with us" and carry on placing people without any responsibility on just who they are placing them with because liability and duty of care aren't in their business model due to costs.

    So if it doesn't work like that in real life, why should it work like that just because it's "on the t'internet".

  10. LDS Silver badge

    The immaterial intermediary risks

    Intermediaries have been always a risk - even old "physical", model agencies (and the like) weren't able to protect fully from risks, and a lot was, and still is, up to the ethics of those running them. There were, anyway, a bigger risk of getting out of business and re-entering could have been a bit more difficult.

    A web site is easier to setup, and if trust is lost, it's far easier to setup another under a different name - too often it too difficult to understand who is really behind it, and how trustworthy they are.

    Being intermediaries for people, and not only goods, is a job that should require a lot of care Risks are evident, especially in cases like this, and "online" risks are amplified by the ease of deceiving if not anonymity. Showing up at a model agency to look at books is very different than lurking from a PC. Even classified ads, with so little data, were a different thing than a site offering photos and a lot of details.

    IMHO intermediaries for people (those actively offering intermediary services, and earning from them) should have some higher standards than those for goods, or sites just offering you a space you decide how to use and fill (at your own risk, then).

    People should be asked to register with a minimum of identity check. It wouldn't scare away all abusers, yet many won't risk. In turn it would give some more trustworthiness, and tell which are reputable and which are not.

    Entities not adhering to the standards should be forbidden to "store and trade" most user data. Otherwise greed would often prevail, and who cares of what happens after I cashed my money - after all it's just some records into a database, who cares?

    PS: I'm not a native English speaker, but doesn't "mayhem" imply a meaning of *violence*? Not a good omen for such a site.

    1. Anonymous Coward
      Anonymous Coward

      Re: The immaterial intermediary risks

      "mayhem"

      Looking at the definitions on the internet is seems to imply violence, but in reality it is often used lightheartedly, such as "the birthday party was pure mayhem". That's my understanding from living in the UK at least.

  11. Anonymous Coward
    Anonymous Coward

    Intermediary sites: days are numbered

    These sites do not police themselves, I'm discovering through personal experience.

    I have a stalker problem: a mental defective with a keyboard and a persistent unfounded grudge against your humble servant.

    Ashley Madison is typical. My stalker created an account in my name a few months ago. I reported it to abuse@. No action. I logged in and set up a blatantly fake profile. I'm still getting email notifications. Not even Google and Facebook, with all their strict policies, have been able to stop this person from creating fake accounts and harassing me on their platforms.

    If they cannot or will not police themselves, it's time for the law to police these companies out of existence.

  12. R3sistance

    How does this impact free speech at all?

    This one is a bit of a joke, the issue here has nothing to do with free speech but that the site in question is believed to have known about scams being performed using it's services and not offering adequate protection or information to users about these risks. If the site had at least warned users that it does not vet users of it's services and that messages could be coming from literally anybody whom could fraudulently claim to be from a legitimate photoshoot gallery and so care should be taken when agreeing to meet up with people, then the onus is removed from the site.

    More so this doesn't impact free speech because the issue is NOT the content on the website, it was what a LACK of content on the website led to happening in person.

    I do not agree that the site should necessarily place up that it is aware of this actively going on, as such actions could impede police investigations if they were being carried out. Instead the site just needs to warn that such can happen. It seems likely as the offenses were against multiple women that the site was made aware of these particular two, in which case they should have deferred any actions towards the local law enforcement authority as you would hope any self-respecting company should do.

  13. Snapshot

    Would this make eBay take action against those selling fakes?

    If there's enough feedback saying a product is a fake, would eBay (and Amazon) be forced to actually do something instead of sitting on its hands as it does now? There might be a bright side to this after all.....

    1. anonymous boring coward Silver badge

      Re: Would this make eBay take action against those selling fakes?

      eBay generally reimburses buyers who get something different from what the seller describes. The seller's rating goes down, and the seller has to pay for shipment both ways, as well as pay back the payment. That's my experience anyway.

      1. Anonymous Coward
        Anonymous Coward

        Re: Would this make eBay take action against those selling fakes?

        You don't know what kind of crazy fuck you could be giving your name and address to when you buy or sell anything on eBay, Craiglist, whatever. It has happened to someone who shares my address.

        I'd stick with proper flea markets, cash based and anonymous.

  14. The Nazz Silver badge

    One sad aspect of this story ...

    is that the existing law, as it's quoted exceptions, places "IP theft" on a far higher plane than violent and the most heinous of sexual offences.

    Wow, some civilised society right there. Not.

  15. Bakana

    What was decided ...

    Most of the comments here seem to b e missing the point of just What was decided in this case.

    The appeals court didn't decide whether or not the woman should Win her lawsuit.

    They simply said that the argument the website was using to try to get the lawsuit dismissed was Bogus and has no application to the Facts of the case.

    The Law says that the Website is not responsible for other people's Free Speech.

    The website's lawyers tried to twist that into Shielding them from a lawsuit over actions the Website Failed to take, which has nothing to do with "Free Speech".

    The section of the law that the Website tried to use reads:

    "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

    The woman is suing under a California law which says that, if the website was aware of Criminal Conduct on the part of the rapists (They WERE, they had Multiple Complaints) they had a "Duty to Warn" their users of the danger.

    Now, the original court will have to go back and allow the Jury to decide the case on its merits which is what the owners of the Website were trying to Avoid because, they will most likely Lose.

    1. Michael Wojcik Silver badge

      Re: What was decided ...

      They simply said that the argument the website was using to try to get the lawsuit dismissed was Bogus and has no application to the Facts of the case.

      Wrong. They said that S.230 wasn't sufficient protection to dismiss the case. The Ninth didn't say it was "bogus", or that it didn't apply.

      However, I'm sure I speak for Many readers when I say how much I Enjoy your Random application of Capitalization.

  16. x 7

    Internet Brands are a bunk of cprporate idiots. Take their pprune.org website. Its moderated (or rather censored) by a pompous idiot who bans anyone he personally doesn't like. Its essentially run as his personal wet dream, where he gets to lord it over the proles he allows to post.

    A properly run business would have sacked him years ago.

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