Online Activities Not Covered by Section 230

While most courts have held that Section 230 grants interactive computer services broad, expansive immunity, this recognition often comes with some reluctance by the courts. Occasionally courts try to find ways around the broad immunity grant of Section 230. Early on, most courts that tried to hold service providers liable were trial courts that eventually found themselves reversed on appeal.

Lately, however, some appellate courts have been willing to limit Section 230's immunity. This has primarily involved two types of activities by online publishers:

  • Editing of content that materially alters its meaning. If you edit content created by a third-party and those edits make an otherwise non-defamatory statement defamatory, you will likely lose your immunity under Section 230. Where this line is, however, remains unclear. Obviously, if you remove the word "not" from a sentence that reads "Jim Jones is not a murderer," you will have substantially altered the meaning of the sentence and made an otherwise non-defamatory statement defamatory.

  • Engaging with users through drop-down forms to create discriminatory content. In a case that appears to be in direct conflict with the Carafano decision mentioned above, the Ninth Circuit Court of Appeals held that was not immune from claims under the Fair Housing Act and related state laws because it "created or developed" the forms and answer choices that those seeking to use the service had to fill out. For example, anyone seeking a roommate had to provide information about themselves, such as “male” or “female,” and indicate who else lived in the house (e.g., “straight males,” “straight females,” “gay males,” or “lesbians”). All prospective users had to choose from a drop-down menu to indicate whether they were willing to live with “straight or gay males,” only “straight males, only “gay males,” or “no males” and had to make comparable selections pertaining to females. In a decision rejecting immunity under Section 230, the court reasoned that by requiring members to answer questions, was essentially causing users to make discriminatory statements. In addition, the court held, also bore liability because it permits users to search the profiles of other members with certain compatible preferences (e.g., search only for females with no children). Fair Housing of Council of San Fernando Valley v., CV-04-56916 (9th Cir. 2008).
  • Failing to comply with promises to remove material. You might also lose the protection of Section 230 if you promise to remove content and then fail to do so. The Ninth Circuit found in Barnes v. Yahoo!, Inc., that Section 230 did not shield a site from a "promissory estoppel" claim. "Promissory estoppel" is a legal principle stating that if you promise to do something, you might be held responsible for the consequences of another's responsible reliance on your promise, even when you have no independent legal obligation to perform the promised act. In Barnes, Cecilia Barnes' ex-boyfriend had created fake profiles of her on a Yahoo! site, which contained nude photographs of Barnes and solicitations for sexual intercourse. After several months of sending requests to Yahoo! to remove the fake profiles, a Yahoo! employee contacted Ms. Barnes, asked her to re-send her previous statements, and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." Barnes claimed that she relied upon Yahoo!'s promise and did not take other measures to protect her reputation, but that Yahoo! never removed the profiles. Consistent with previous cases, the Ninth Circuit found that Section 230 protected Yahoo! from Barnes' claim of negligence in failing to remove the fake profiles. However, the court found that once Yahoo! promised to remove the fake profiles despite enjoying Section 230 immunity, it had waived the protection of Section 230 and could be responsible for the consequences of Barnes' reasonable reliance on that promise. The court noted, however, that a general monitoring policy--such as one articulated in a site's terms of service--would not be sufficient to create liability under a theory of promissory estoppel. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).

Note: For a general overview of Section 230 of the Communications Decency Act, see the page on Immunity for Online Publishers Under the Communications Decency Act in this legal guide.

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