It is likely that sometime in the next few weeks craigslist will be filing a writ petition in the First Appellate District Court of Appeal for the State of California in Scott P. v. craigslist, Inc., Foster Dairy Farms, et al., No. CGC-10-496687 (Hon. Peter Busch), asking the Court of Appeal to reverse a recent San Francisco Superior Court decision in an employment harassment case that may have far reaching implications for online service providers and the scope of Section 230’s protection. The lower court’s holding eviscerates Section 230 by holding that anytime a provider responds affirmatively, positively or cooperatively to a user’s complaint about third-party content on their service, the service provider has given up the immunity and discretion specifically provided by the CDA. Recognizing the potentially widespread detrimental effects of such a holding, several amici, representing the views of public interest organizations, law professors, and online service providers, have expressed an interest in supporting craigslist’s petition requesting that the Court of Appeal reverse the decision.
In the underlying suit, plaintiff, Scott P., alleged that his employer impersonated him in fake craigslist ads, which falsely solicited sex and offered up his possessions for free. Plaintiff further alleged that he contacted craigslist to request help removing the posts and preventing any future posts and that craigslist customer service representatives created a binding agreement when they indicated on the phone that they would “take care of it.” The lower court agreed, finding that craigslist’s alleged efforts to respond effectively to plaintiff’s customer service complaint were sufficient to support Plaintiff’s promissory estoppel claims and that these claims were outside the scope of Section 230’s protection.
The lower court’s holding is especially troubling as the major online providers receive millions of customer service inquiries a year from their users and third-parties on a wide range of topics, some of which include content removal requests. Responsible providers typically implement external and internal guidelines on acceptable content and are willing to remove content that violates those terms. However, the lower court’s decision indicates that whenever a customer service representative attempts to help a customer or a third-party who is lodging a complaint, he or she will be exposing the ISP to risk of litigation. As someone who spends a substantial amount of time training company staff, including customer service agents (who are not lawyers), how to have these conversations, it seems untenable to provide customer support if each statement could potentially support a cause of action. Given that action creates a risk of litigation and under Section 230 non-action results in immunity, providers face serious risk if they continue to provide the type of customer service available today.
A company’s handling of this type of customer service issue is discretionary. The CDA gives interactive computer services the prerogative to maintain a third-party’s post on its system or decide that it is egregious and should be removed. A potential consequence of the lower court’s decision is that service providers who otherwise would remove content following a complaint could now face a series of unpalatable options – remove the content and risk liability; respond to the customer by saying “we don’t have to act and we won’t”; or eliminate phone support in favor of alternate modes of responding to complaints that allow for better documentation and more protection from litigation.
Additionally, in the case of Scott P., what did the plaintiff’s forbearance actually cause him to avoid doing? Some may argue that the plaintiff could have been more vigilant in monitoring the list and informing craigslist of new incidents as they came up, instead of thinking that they were willing (and able) to prevent future harassing posts. When Scott P. informed craigslist of the posts, craigslist was free to say “thanks, but we don’t feel like doing anything about these posts.” And if craigslist had done that, then under Section 230 it unquestionably would have defeated any claim Scott P. raised. So how, exactly, was Scott P. harmed by the alleged promise? He did not lose a statute of limitations period against the poster or craigslist or anyone else, and he couldn’t have acted against craigslist effectively.
Simply put, what world do you like better — the one in which responsible companies provide phone support and act to take down certain posts in their own discretion, helping some but not all victims, or the one in which no phone support is available and no posts are ever removed? Because that’s the real choice here.
Having been involved in dozens of these cases, my strong suspicion is that the alleged “promise” in Scott P. v. craigslist is really just what the plaintiff wanted to hear, and not what the customer care representative actually said (or perhaps is one statement out of many others the agent also made indicating the limitations on what the provider could do, e.g., policing and preventing future posts). This raises the issue of whether every plaintiff is entitled to survive a motion to dismiss if they merely allege that an ISP gave some type of indication that it intended to take action. For companies, the inability to win a motion to dismiss and avoid discovery and the attendant costs in a case of this potential scale is often the same as a loss. Thus, contrary to the intent of the CDA which is to encourage online service providers to come to the aid of their users, this holding encourages online service providers to become unresponsive to complaints in an effort to avoid exposure to the potential costs attendant to this type of litigation.