Posted by Eugene Volokh:
CraigsList Not Liable for Shooting That Used a Gun Sold Via a Craigslist Ad:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245256918
That's the conclusion of Monday's [1]Gibson v. Craigslist, Inc.
(S.D.N.Y.), applying the service provider immunity of [2]47 U.S.C. �
230: Craigslist isn't liable for the ad, even if the ad itself is
tortious:
Plaintiff seeks to hold [Craigslist] liable for its alleged failure
to block, screen, or otherwise prevent the dissemination of a third
party's content, i.e., the gun advertisement in question, alleging,
among other things, that Defendant "failed to monitor, regulate,
properly maintain and police the merchandise being bought and sold
on its ... website" and "is either unable or unwilling to allocate
the necessary resources to monitor, police, maintain and properly
supervise the good and services sold on its ... website." It is
clear that Plaintiff's claims are directed toward Craigslist as a
"publisher" of third party content and "Section 230 specifically
proscribes liability in such circumstances."
I don't think that Craigslist should be liable even under normal state
tort law: I don't think it's negligent for Craigslist not to police
its ads, given the high costs of reading each ad and then trying to
figure out whether it offers an illegal transaction or is likely to
lead to injury. What's more, while I couldn't find a quote of the ad
itself -- if any of you can point me to it, I'd love to see it -- the
[3]plaintiff's own motion (p. 7) says that "the content of the ad
placed upon defendant's website was not, in itself, objectionable,"
and that it didn't say things like "'Illegal handguns for sale' or
'Shoot your neighbor.'" The plaintiff's argument therefore seems to be
not just that Craigslist should look at every ad (or perhaps at all
ads that contain certain keywords), but that it should further
investigate the circumstances of the ad to see whether the proposed
transaction is illegal (or poses unreasonable dangers) even when the
illegality or unreasonable danger is not obvious from the ad's face.
But negligence law is quite mushy and unpredictable in many ways, and
even if it doesn't lead to liability, it can lead to a long and very
expensive legal fight. 47 U.S.C. � 230, as interpreted by courts, has
been considerably more clear and protective, and can often be used to
throw out lawsuits very early in the process. So I'm particularly
happy (but not at all surprised, given the text of the statute and
past caselaw interpreting it) that the court decided the case on � 230
grounds.
Special bonus from reading the [4]plaintiff's opposition to the motion
to dismiss (p. 3): "[Craigslist's] only concern is the bottom line,
the public be darned." Never quite heard that way of putting it
(though I can see why the lawyer didn't want to say "damned").
The next sentence, on the other hand, is less amusing: "For public
policy concerns, [Craigslist] must be immediately regulated or shut
down." It's also probably a poor way of arguing the case, given that
the whole premise of 47 U.S.C. � 230 is that service providers
shouldn't be "regulated" or "shut down" by fear of liability; if
you're arguing that � 230 doesn't apply, you should probably argue
that you're calling for a very modest and narrow sort of liability --
for instance, the liability imposed on newspapers, which one would
hardly call "regulat[ing]" or "shut[ting] down" the newspaper --
rather than for regulation or shutdown.
Thanks to Prof. Michael Krauss for the pointer. As I noted above, if
any of you can point me to the text of the ad, which I couldn't find
in any of the Pacer-accessible documents (the Complaint, for some
reason, isn't on Pacer), that would be great -- it's not relevant
under the court's 47 U.S.C. � 230 approach, but it might nonetheless
be helpful for discussing the broader issues.
References
1. http://www.nylj.com/nylawyer/adgifs/decisions/061709berman.pdf
2. http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act
3.
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2008cv07735/331721/12/
4.
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2008cv07735/331721/12/
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