You Shouldn't Lose Section 230 Protections By Helping A User

from the promissory-estoppel dept

Last year, we wrote about a lawsuit against Yahoo where Yahoo effectively lost its Section 230 safe harbors because an employee told someone they would takedown content, even if they didn’t have to, based on Section 230. Taking that argument a step further, a guy named Scott P. sued Craigslist after the company did not successfully block fake posts made from someone pretending to be him, despite a customer service rep telling Scott that they would “take care of it.” Craigslist did take down the posts, but there was simply no real way to promise that no new fake posts would ever get through again — and, in fact, some did, leading to the lawsuit. Unfortunately, a court ruled that Craigslist may have lost its Section 230 protections for the same reason as the Yahoo/Barnes case. That seems odd, as the situation is somewhat different (promising to takedown content vs. supposedly promising never to let certain content go up again — an impossible promise).

Craigslist is now appealing the ruling and the EFF has filed an amicus brief, pointing out that if this ruling stands, it actually goes against the deeper purpose of Section 230, which is to make service providers comfortable in moderating or taking certain steps to help users, without worrying about increasing liability on themselves. In other words, if such a ruling stands, then websites will be hesitant to help users at all for fear of losing Section 230 protections — and that doesn’t seem like a reasonable result.

Furthermore, as Eric Goldman noted back when the ruling first came out, this case is a perfect reminder of why Section 230 exists: to properly apply liability and not get people suing third parties:

Overall, this case illustrates why 230 makes so much sense. The underlying problem involves a workplace harassment campaign that took place both online and off. Craigslist was just one of several tools used by the harasser(s) as part of the campaign. For example, the harasser(s) allegedly obtained a fake Hotmail account in the plaintiff’s name, so why not sue Hotmail? The plaintiff didn’t, even though the Hotmail account was an integral part of the scheme. Meanwhile, the people misusing the tools remain accountable for their choices. Most conspicuously, one harasser has already been criminally busted for his behavior in this matter. In light of the criminal bust, I don’t understand why the plaintiffs think Craigslist should be part of the liability chain, and presumptively 230 reinforces its illogic by preventing the plaintiff from complaining about third party conduct.

Hopefully the appeals court recognizes this and makes it clear that Craigslist is, in fact, protected.

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Companies: craigslist

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Comments on “You Shouldn't Lose Section 230 Protections By Helping A User”

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Paul Alan Levy (profile) says:

Another way to approach this case

It struck me, on reading the briefs in the case, that the circumstances are just the sort that might call for an application of a statute-of-frauds like rule to deciding whether a promise to remove stuff is enforceable. It is all too easy for a plaintiff to claim that he was told something that, after all, he wanted to hear, and even if the court decides that “take care of it” is too vague to be enforceable, the next plaintiff will learn from the case and develop a more specific recollection of what he was told. Only by insisting that the promise be in writing can we avoid that. Under the doctrine called the “statute of frauds,” some kinds of contracts are not enforceable unless they are in writing. And this plays well with what some ISP’s were warning when Barnes v. Yahoo! came down a couple of years ago — that the result of the decision would be that they would not provide any opportunity for oral contract with employees. The state courts could adopt this rule as a matter of California public policy, or perhaps it makes sense to incorporate this further refinement into the Barnes v. Yahoo! analysis of when promissory estoppel can avoid section 230.

Another point perhaps worth making, in distinguishing this case from Barnes v. Yahoo!, is that there is no clear allegation of what Scott P gave up after he received the promise. In Barnes v Yahoo!, Yahoo! had apparently called Barnes after it started getting media inquiries, and after an Oregon state legislative committee asked Barnes to testify. Barnes claimed that she stopped calling in the press and the legislature in reliance on the promise from a high-level supervisor at Yahoo! As I read the complaint, Scott P claims only that he stopped nagging craiglist after he got each promise (until he started nagging again, apparently).

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