Dispatches from the living amongst journalism's walking dead

Don’t make promises about UGC you can’t keep

It may be old news to media law nerds like me, but the ongoing case of Barnes v. Yahoo has revealed a potential minefield of legal trouble for media websites of all sizes in something as simple as a broken promise.

Dont make promises!

Don't make promises!

As most every media person knows, Section 230 of the Communications Decency Act of 1996 grants immunity from liability to service providers (including media sites) for user-generated content, even if it is defamatory. The Barnes case re-asserted that protection, but it also revealed a possible loophole in that immunity that can occur if you promise to remove content – and don’t follow through.

The case, in short:

It started with a bad breakup. Cecilia Barnes’ ex-boyfriend put personal info and lewd photos of her in a Yahoo profile soliciting for sex. She tried to contact Yahoo to get the defamatory profile removed and eventually got through to a person who said they’d take care of it. They didn’t.

And it was there that the loophole appeared. Aside from the issue of defamation in relation to the content of the profile, Barnes’ suit has a claim for breach of contract from Yahoo for not taking down the profile as promised.

While U.S. contract law typically requires evidence of a contract, there’s a judicial doctrine known as “promissory estoppel” that makes a promise like that at Yahoo a contract.

[promissory estoppel] allows courts to find an enforceable contract absent consideration where a claimant can prove the following: 1) a promise was made, 2) the promisor, as a reasonable person, should have foreseen that the promise would induce the conduct of the type which occurred, and 3) the claimant actually relied on the promise resulting in a substantial change in his or her position.

So, that broken promise, essentially, is the contract that was broken – and thus, a whole other Pandora’s box is opened.

The lesson for you? If you have comments or other kinds of user-submitted content on your website or blog and someone calls to complain about something in that content, whatever you do – don’t make any promises to remove it if you don’t want legal responsibility for it.

I know from experience on these kind of calls that you want to say you’ll take care of it right away, but don’t. Say you’ll look into it. Tell everyone in your newsroom to say the same.

And finally, for the love of God, don’t put up profiles of your ex-girlfriends on Yahoo – prank calls are far less problematic.

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  1. Don’t make promises about UGC you can’t keep http://bit.ly/FMso0

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