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Website Legal Compliance for Blog Sites Now More Risky Than Ever

posted 18 Nov 2010, 12:55 by Sam Mbale   [ updated 18 Nov 2010, 12:56 ]

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".

About the Author:

Leading Internet, IP and software lawyer Chip Cooper has
automated the process of drafting your website legal forms
for website legal compliance -
http://www.digicontracts.com/kits/firewall.aspx . Use his
free online tool -- Website Documents Determinator -- to
determine which documents your website really needs.
Discover how quick, easy, and cost-effective it is to draft
your website legal forms at DigiContracts.com.


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