In general, the federal communications decency act has two provisions that provide very strong liability protections for service providers, to the extent that that protection was once thought to be invincible. However, recent cases have shown that service may be liable if they promise to take corrective action, but fail to follow through.
The first protection offered by the CDA is that a service provider is not held liable for content published on its website by 3rd parties, even if that content is false or slanderous. The second protection is that a website operator cannot be held liable for removing 3rd party content it determines is objectionable. Notwithstanding these protections, two different courts have recently allowed suits to go forward when a website provider promised to remove certain content, but then failed to follow through on the promise. The first suit involves the posting of false ads on craigslist which falsely identified an individual as openly gay and invited sexual liaisons. When the aggrieved party contacted Craigslist, Craigslist representatives agreed to take down the posts, which they did, but they also agreed not to allow any future posts with the user’s information without express consent. 1 month later more slanderous posts appeared without the users consent. The court said that notwithstanding the immunities provided by the CDA, a service provider can be held liable for failing to follow through on its promises (promissory estoppel). Likewise, in a case against Yahoo, a woman filed suit after an ex-boyfriend posted fraudulent profiles of the woman on Yahoo. Yahoo had promised to take the profiles down, but failed to do so until after the woman filed suit. The court once again denied Yahoo’s motion to dismiss based on the theory of promissory estoppel.
The take away from website owners is that if you promise to take material down, you need to follow through – or else the aggrieved party can sue you. Once you agree to remove material you have essentially waived the protections granted to you by the Communications Decency Act. Website owners will also want to make sure that all of their employees are aware of the ramifications of agreeing to take down material and then not following through. In fact the course of action with the least amount of risk for a website owner might very well be to never agree to remove any content period.