Craigslist Loses 230 Defense to Promissory Estoppel Claim–Scott P. v. Craigslist
By Eric Goldman
In a situation not dissimilar to the venerable Zeran case, starting in March 2009, Scott P. was criminally victimized by a campaign of fake Craigslist posts, including ones falsely soliciting gay sex and offering to give away his possessions. Three times after such posts, he contacted Craigslist to request that they stop postings that contain his name, number or address, and each time Craigslist’s CSRs allegedly replied that Craigslist “would take care of it.” In the second exchange, Craigslist allegedly also said it would take steps to stop the fake posts. In the third exchange, Craigslist allegedly also said that it had already taken steps to stop the fake posts. I doubt the CSRs made any promise that fake posts would never occur again, but that’s apparently what Scott heard (or wanted to hear).
All three Craigslist responses came just before the Ninth Circuit’s ruling in Barnes v. Yahoo, which indicated that 47 USC 230 did not eliminate websites’ liability for promissory estoppel if a website promises to fix user-supplied content. Post-Barnes, Craigslist probably no longer tells folks that it will “take care of it” or promise any remediation of any sort. Instead, I assume Craigslist is more equivocal in response to complaints about user activity, i.e., “We might or might not help you, but don’t rely on anything we say.” I’m not sure equivocal responses from sites like Craigslist are what society really wants, but that’s the logical protocol following Barnes.
Unhappy that Craigslist didn’t uphold the promises he thought it made, Scott sued Craigslist for promissory estoppel and CA B&P 17200 for unacceptably weak user verification procedures. Last week, the court partially granted and partially dismissed Craigslist’s 230-based demurrer:
Defendant Craigslist, Inc’s Demurrer to 1st Amended Complaint. Argued and the Court adopted its tentative ruling as follows: sustained without leave to amend as to cause of action 2 both because the claim is barred by Section 230 and because plaintiff lacks standing. Overruled as to cause of action 1 because plaintiff has sufficiently pleaded an agreement supported by promissory estoppel. 10 days to answer. Further, defendant Craigslist, Inc’s oral request for a stay of discovery is granted for 2 weeks to permit defendant to seek a writ and give time to the court of appeal should it choose to accept that writ and extend a stay, should it choose to do so. Ms. McDougall to submit a proposed form of order.
So Craigslist successfully eliminated the 17200 claim per 230, but Scott’s promissory estoppel claim survived the demurrer due to Barnes. I haven’t yet seen too many 230 Barnes-style bypasses, but this is a fine example that the plaintiffs are paying close attention to any 230 workarounds. I’m skeptical that Scott can ultimately succeed with his promissory estoppel claim, though. What more could he have done that he chose not to do based on Craigslist’s alleged promises? Meanwhile, my understanding is that Craigslist will seek an expedited writ from the appellate court, so this case could break more legal ground soon.
Overall, this case illustrates why 230 makes so much sense. The underlying problem involves a workplace harassment campaign that took place both online and off. Craigslist was just one of several tools used by the harasser(s) as part of the campaign. For example, the harasser(s) allegedly obtained a fake Hotmail account in the plaintiff’s name, so why not sue Hotmail? The plaintiff didn’t, even though the Hotmail account was an integral part of the scheme. Meanwhile, the people misusing the tools remain accountable for their choices. Most conspicuously, one harasser has already been criminally busted for his behavior in this matter. In light of the criminal bust, I don’t understand why the plaintiffs think Craigslist should be part of the liability chain, and presumptively 230 reinforces its illogic by preventing the plaintiff from complaining about third party conduct. The Barnes promissory estoppel workaround will work for plaintiffs only so long as service providers actually respond to inquiries from victims like Scott. If this lawsuit shows any success, you can kiss those responses goodbye.