In Scott P. v. craigslist, Inc., the Superior Court of the State of California, County of San Francisco ruled the case can continue because Craigslist had given up its protection under Section 230 by telling the plaintiff that they would “take care of it”. The case involves Scott P who called Craigslist to complain about a series of ads impersonating him falsely soliciting sex and offers of giving away his possessions for free.
Scott P 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.
I have long cautioned representatives of Model Mayhem that their active manipulation of member content potentially weakens their protection under Section 230 of CDA. I touched on it in this post regarding Model Mayhem’s no outing policy. This is a complex issue. While on the one hand I support the Electronic Frontier Foundation’s position that websites should be shielded under Section 230 of CDA, I also see problems with allowing websites to actively manipulate member content and still claim protection. In the Scott P case, he is claiming Craigslist failed to act actively to remove defamatory posts. But what if a site is too active or not active enough? Hypothetically, if a model post a warning about a predator in the forum and the warning is hidden, can Model Mayhem still claim Section 230 protection if another model is assaulted because Model Mayhem actively removed that warning by a member? Should any website receive such protection if they actively manipulate member content? I can definitely see both sides of the argument. For now, the safest route for websites to take is to do nothing. Under current CDA rules, doing nothing about member content affords them the most protection but is that the best policy in terms of public interest?
In a related matter, Internet Brands is claiming they may be the target of a lawsuit involving the rape of five women by Lavont Flanders Jr. There is no clear evidence that Flanders was ever even a member of the site. Even if he was and used the site to solicit models, the site is no more liable than Chevron if Lavont had used Chevron gasoline to travel to the scene of the crime. But what if a model had posted a warning about Lavont and Model Mayhem actively removed that warning? Would the site still have immunity under Section 230?
This also brings up another issue with the way Model Mayhem currently removes images without requiring a DMCA notice. Back in November 2009, I posted this in response to an inquiry as to how Model Mayhem should handle image request removals.
For claims of copyright violations, Model Mayhem should not be taking images down without a proper dmca filing. There should be a form to fill out with all the relevant sections and all take down notices should go through this process. Once a filing has been received, they are under no obligation to investigate the issue. MM is supposed to take the images down and inform the person who posted the image. There are procedures to follow for MM to receive the safe harbor protection. Not following those procedures puts MM at risk of losing that protection and incurring other liabilities.
The risk with the current procedure is the lack of accountability. Anyone can setup an account on MM and send out a message to remove pictures. If some pictures are removed in error, MM has no way to get the real identity of the person making the claim. And because they have removed the images without a proper notice, they no longer have immunity from liability and worse, they risk losing their safe harbor protection.