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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

By Oliver Benn
July 23, 2010 04:09 PM ET

Computerworld - 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.)

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