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A plaintiff cannot sue someone for publishing third-party content under the Communications Decency Act simply by changing the name of the theory from defamation to negligence. Nor can he or she escape 47 U.S.C.S. § 230(c) by labeling as a "negligent undertaking" an action that is quintessentially that of a publisher. The word "undertaking," after all, is meaningless without the following verb. That is, one does not merely undertake; one undertakes to do something. Removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove. It is because such conduct is publishing conduct that courts have insisted that § 230 protects from liability any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online.
Plaintiff former girlfriend sued defendant internet service provider (ISP) alleging negligent undertaking and promissory estoppel in failing to remove indecent content posted by a former boyfriend on the ISP's website. Defendant moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), contending that section 230(c)(1) of the Communications Decency Act rendered it immune from liability in the case. The district court granted the motion to dismiss, finding that the Act did in fact protect the defendant from liability as a matter of law. The plaintiff appealed, claiming that the so-called immunity under section 230(c) did not apply to the cause of action she has brought and that, even if it did, the defendant did not fit under the terms of such immunity.
The district court's dismissal of the claim of negligent undertaking was affirmed. According to the court, the plaintiff could not escape § 230(c) by labeling as a "negligent undertaking" an action that was quintessentially that of a publisher. One had to "undertake" something, and removing content was something publishers did. A negligent undertaking claim required treating the defendant ISP as a publisher of the content it failed to remove. Section 230 protected from liability any activity that could be boiled down to deciding whether to exclude material third parties sought to post online. It precluded treating ISPs as publishers not just for defamation law and its distinction between primary and secondary publishers, but in general. Thus, the negligent undertaking claim was barred. However, the court reversed the dismissal of the contract claim under a theory of promissory estoppel. According to the court, the promissory estoppel claim did not seek to hold the defendant ISP liable as a publisher or speaker of third-party content, but as a counter-party to a contract who promised to remove the content and then breached the promise. Contract liability would come not from publishing conduct, but from the defendant ISP’s manifest intention to be legally obligated to do something, which happened to be removing material from publication. A breach of contract claim under a promissory estoppel theory was not precluded by § 230(c)(1).