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November 19, 2010

Website Legal Compliance for Blog Sites Now More Risky Than Ever

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Unfulfilled promises by blog site personnel to remove objectionable materials from blogs continue to create headaches – and increased legal exposure – for blog site operators. A recent case involving craigslist.org teaches a critical lesson for blog site operators: be very careful what you and your personnel promise; be very, very careful.

Section 230 of the Communications Decency Act

If you’re a blog site operator, you should have a clear understanding of the protections – and pitfalls – provided by Section 230 of the Communications Decency Act of 1996 (Section 230).

Prior to the enactment of Section 230, a blog site could be held liable for defamatory posts by its visitors, even if the blog site operator had no knowledge of it. Think about it – posters to your blog often have an axe to grind; many believe that they can post almost any derogatory comment on the Web. Section 230 was passed by the U.S. Congress to provide relief for websites that allow visitors to post comments.

Section 230 was a significant breakthrough for websites that qualify as “interactive computer services.” Today, blogs and blog sites should qualify for protection under Section 230’s umbrella immunity.

Section 230 provides two immunity clauses:

* a website operator may not be treated as the “publisher or speaker” of any information provided by another;

* however, a website operator may be held liable for any good faith action it takes to restrict access to “objectionable” materials.

In 1997, the 4th Circuit Court of Appeals upheld Section 230 immunity by ruling in the case of Zeran v. America Online, Inc. that Section 230 immunized America Online from suit regarding content posted by third parties, even if there was an unfulfilled promise to remove the offensive material.

Despite the fact that Zeran and other early cases ruled in favor of Section 230’s immunity for website operators, two recent cases show that the immunity is not bullet proof – the most recent one being Scott P. v. craigslist, Inc.

Scott P. v. craigslist, Inc.

Scott claimed that his supervisor was harassing him due to sexual orientation. Scott even alleged that his supervisor created false ads about his sexual orientation and posted them on craigslist.org.

Scott called craigslist and complained about the alleged false ads requesting craigslist to not post future ads that would identify him. According to Scott, craigslist personnel promised to “take care of it.”

About a month later the supervisor successfully posted six new ads on craigslist that identified Scott. Scott then sued craigslist.

Craigslist moved to dismiss Scott’s suit on the grounds of Section 230 immunity, but the motion was rejected based on the doctrine of promissory estoppel, and the rejection was upheld by the California Court of Appeal and Supreme Court.

Promissory estoppel allows a plaintiff to recover damages from a defendant who makes an unfilled promise on which the defendant reasonably relies to the defendant’s detriment. The significance of promissory estoppel is that plaintiff may recover damages for an unfulfilled promise even in the absence of an enforceable contract.

Conclusion

Scott P. v. craigslist, Inc. and the 2009 case of Barnes v. Yahooo!, Inc. both hold that despite the statutory immunity of Section 230, a website operator may waive the immunity by promising to remove objectionable materials and then failing to live up to the promise.

The lesson for sites with blogs and blog sites – in order to avoid this major pitfall involving promissory estoppel, be careful to avoid promising to remove objectionable material. Don’t even make statements that could be construed to be a promise such as “we’ll take care of it.” The best course of action is to state explicitly that you are “not promising” to remove objectionable content, but that you will “take it under advisement.”


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