A debate is heating up over whether the courts should recognize a “promissory estoppel” exception to Communications Decency Act (CDA) immunity. Some courts have recently been citing this doctrine as a basis for holding a website operator liable for damages when it has failed to act quickly to remove an offensive third party web post after promising to do so.

The CDA contains two immunity provisions: The first says that a website operator may not be “treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The second says that a website operator may be held liable for any good faith action it takes to restrict availability of material that it considers “objectionable.” 47 U.S.C. § 230(c)(2)(A).

Early court decisions, such as Zeran v. America Online, ruled that these CDA provisions immunize a website operator from suits regarding third-party content -- even when the operator has promised but then failed to remove remove offensive material. (Fn1) However, in two recent cases with facts similar to those in Zeran, courts have relied on the doctrine of promissory estoppel to reach the opposite conclusion.

In the most recent case, Scott P. v. craigslist, Inc., Scott P., an employee of Foster Farms claimed that he was harassed by his supervisor based on his sexual orientation. Scott P. alleged that on several occasions his supervisor created false ads on craigslist which identified him as openly gay and invited sexual liaisons. (Fn2) Scott P. called craigslist about the posts, and craigslist personnel voluntarily removed the posts within minutes.

However, during his telephone calls, Scott P. also asked that any future posts identifying him by name, telephone number or address not be allowed on the craigslist website without his express consent. According to Scott P, the craigslist services representatives all volunteered that they would “take care of it.” (Fn3)

A month later, Scott P.’s supervisor successfully posted six new ads on craigslist advertising a number of items that were purportedly available for sale or for free from Scott P. (Fn4) Scott P. then sued craigslist in San Francisco Superior Court, claiming that craigslist’s failure to block the ads constituted a breach of craigslist’s promises to him. Craigslist filed a motion to dismiss, claiming that the CDA immunized it from suits concerning material posted on its site that came from third parties. However, the trial court rejected craiglist’s motion, finding that Scott P.’s suit could proceed under a theory of promissory estoppel. (Fn5)

Craigslist filed petitions for writ of mandate with the California Court of Appeal and Supreme Court to overturn this decision. However, the courts refused to hear these writs, meaning that the suit against craiglist can proceed, as the trial judge had ordered. (Fn6)

Similarly, in the 2009 case Barnes v. Yahoo!, Inc., the plaintiff contacted Yahoo!’s customer service for help after her ex-boyfriend posted fraudulent profiles about her on Yahoo! chatrooms that included nude photos of her, solicitations for sex and her contact information. (Fn7) Barnes contacted Yahoo! And asked for the profiles to be removed. After a news program about the profiles was broadcasted, a Yahoo! staffer 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.” The profiles were not removed from Yahoo! until two months later, after Barnes filed suit against Yahoo! (Fn8)

The trial court dismissed Barnes’ suit as barred by the CDA. However, the 9th Circuit reversed, finding that her suit could go forward under a theory of promissory estoppel.

Under the doctrine of promissory estoppel, a defendant can be held liable if it makes a promise on which the plaintiff has reasonably relied, and which has induced the plaintiff make a substantial and detrimental change in her position. (Fn9) The 9th Circuit reasoned that under her theory of promissory estoppel, Barnes was not seeking to hold Yahoo! liable as the publisher of third-party content, “but rather as the counter-party to a contract, as a promisor who has breached.” (Fn10)

The decisions in Scott P. and Barnes have been roundly criticized as contrary to the Congressional intent behind the CDA. The preamble to the CDA states that the purpose of the CDA it to “maximize user [e.g., website operator] control over what information is received by individuals, families and schools who use the Internet” and “to remove disincentives for the development and utilization of blocking and filtering technologies.” (Fn11) To hold a website operator liable when it promises, but is negligent, in its efforts to remove offensive content would seem to defeat these express goals. Prior court decisions, such as Zeran v. America Online, found that CDA immunity applied even where a website operator promised but negligently failed to remove offensive material or to prevent it from being posted online. (Fn12)

On the other hand, the nature of contract law is to impose legal duties on parties that they otherwise do not have to their counterparties. Even where legal rights are created by statute, these can generally – although not always -- be waived by contract. So even though the CDA provides a website operator with immunity from suit for publishing third-party material, a website operator should theoretically be able to enter into a contract under which it waives its CDA immunity and becomes liable for damages if its fails to remove offensive third-party material.

The problem for website operators is that they may not intend for their customer service personnel, who are on the receiving end of calls from frantic or irate consumers, to enter into contracts that have the effect of waiving the operator’s CDA rights. If courts permit suits to go forward based merely on plaintiff allegations that a customer service person agreed to “take care of’ an offensive post, it could easily eviscerate the immunity from suit and the accompanying hassle and cost that the CDA was intended to prevent.

While this dispute is being sorted out, website operators would be wise to implement written policies and training that forbid employees from promising to take down or prevent the posting of third party material. This does not mean that an operator should not act to take down or preventing the posting of third party material at a consumer’s request – it should simply refrain from promising to do so.