Is 'go away' the best response to complaints about user-generated content?

Courts have said companies that say they will remove content, but then don't, may be liable for damages

Web sites that allow user-generated content (UGC) and third-party advertising are generally immune, under the law, from liability if that third-party information turns out to be harmful. An exception to this immunity appeared in a federal appeals court decision published last year, and a recent case involving Craigslist highlights the steps Web sites should now consider taking to ensure they do not inadvertently relinquish their immunity.

Section 230 of the federal Communications Decency Act (CDA) protects Web sites to the extent that they generally will not be liable for having hosted defamatory, deceptive or otherwise harmful third-party content (though CDA Section 230 does not apply to copyright or other intellectual property laws). Congress made the policy decision in Section 230 to encourage voluntary self-regulation on the Internet, letting the marketplace, rather than crippling litigation, determine good business practices. Therefore, CDA immunity remains intact even if the Web site knows about the offensive UGC and refuses to take it down.

The classic example of CDA immunity would arise if a Web site refused to delete a defamatory posting that one user has made about another. The person harmed can pursue the poster, but not the host Web site. And CDA Section 230 applies to any information created or developed by third parties. So if a Web site allows third-party advertising to appear on its pages and some ads turn out to be fraudulent, the Web site cannot be held liable. This is true even if the Web site knows that some ads are deceptive and does nothing to prevent them.

A federal appeals court, however, found an exception to CDA Section 230 immunity, when a Web site tells someone that it will take down offensive third-party content, but then fails to do so. The slightly bizarre consequence of this decision, Barnes v. Yahoo, is that if someone complains to you about UGC on your site and you say, "Go away," as a legal matter you are in a better position than if you say, "Yes, I'll help."

A recent San Francisco Superior Court case illustrates this problem for Web sites. In Scott P. v. Craigslist, the plaintiff's supervisor created harmful and harassing postings on Craigslist that were designed to appear as if they had been authored by the plaintiff. After each posting appeared, the plaintiff called Craigslist, and each time a Craigslist representative said, "We'll take care of it," or words to that effect. However, Craigslist did not take the posts down, and the plaintiff sued. On a demurrer, the court refused to grant Craigslist full CDA Section 230 immunity, based on the allegation that Craigslist had promised to take the postings down, and then failed to do so. (Craigslist has indicated it may seek a writ from the court of appeals.)

The message to Web sites from these courts appears to be as follows: "If someone tells you about offensive UGC and you refuse to take it down, you're immune from liability. If someone tells you about offensive UGC and you say you'll take it down, but then you don't, you're not immune anymore."

For obvious business reasons, ignoring customers or telling them to go away might not be an option. Therefore, in handling complaints concerning UGC or third-party advertising, Web site owners should consider taking extra precautions to increase the likelihood of retaining CDA immunity.

First, it is important that the Web site's representative does not lead the complainer to believe any specific course of action has been promised. Depending on the circumstances, one way to respond to a complaint about offensive UGC might be: "We will look into it, but it is company policy to inform you we cannot promise we will remove it." That way, the customer understands the complaint is not being ignored, but also knows that no particular action is guaranteed.

Second, according to the Barnes court, the Web site should ensure that its terms of service and any other agreements state that they reflect the entire agreements between the parties and cannot be modified by the types of assurances that affected the results in the Barnes and Scott P. cases.

Third, the terms of service should explicitly and comprehensively disclaim liability based on third-party content, and might even explicitly state the Web site's policy concerning requests to take down UGC -- that is, the Web site cannot guarantee that it will remove third-party content. (Again, the CDA does not apply to copyright or other IP laws, so a different approach would be necessary for those issues.)

While these steps do not guarantee that a court will always grant CDA immunity to a Web site, in light of the Barnes and Scott P. decisions, they may help Web sites reduce the likelihood of litigation based on an inadvertent promise to remove offensive content created by others.

Oliver Benn, of Duane Morris LLP in San Francisco, practices in the area of commercial litigation, with an emphasis on Internet/emerging technologies, class action litigation and appellate matters.

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