Dart v. Craigslist: District Court Ruling Clarifies Extent to which a Website Can Permit Publication of Illegal Content but Retain Communications Decency Act (CDA) Immunity
Digital media law update: At last, one of several suits by law enforcement authorities against Craigslist, over its alleged publication of ads promoting prostitution services, has reached a court decision. The result, which appears to be driven at least in part by Craiglist's recent actions to clean up its site, is that Craigslist has been found not liable for aiding and abetting the practice of prostitution in Chicago.
The case, Dart v. Craigslist, Inc., N. D. Ill., No. 1:09-cv-01385, was brought by the Sheriff of Cook County who alleged that Craiglist was facilitating prostitution and creating a public nuisance. According to the complaint, Craigslist had become "the single largest source for prostitution, including child exploitation, in the country." The Sheriff argued that Craigslist facilitated prostitution because it created classified ad categories entitled "erotic" (now "adult") services, subcategories referring to different types of sexual services (such as "w4m"), published thinly-veiled ads offering prostitution services, and allowed these ads to include nude of semi-nude photos of women. For example, one ad read "HELLO GENTLEMEN NOW YOU MEET JADE AND TIPHANY WE DO TWO GIRL SHOWS AND INDIVISUAL CALLS!! WE GUARANTEE THE TIME OF YOUR LIFE!!! (spelling errors in the original).
The Sheriff stated that he and other law enforcement authorities regularly conduct prostitution stings using advertisements published in Craigslist. The Sheriff claimed that he had arrested over 200 people through Craigslist since 2007.
Craigslist countered that while it created the categories the Sheriff cited, its users created the ad content. Moreover, Craigslist claimed that it took steps to discourage ads promoting prostitution by including a provision in its Terms Of Use prohibiting users from posting illegal content, and by placing a "warning and disclaimer" in its erotic/adult services section stating that users entering the section agreed to "flag" prohibited content so that it could be removed. Craiglist also imposed a $10/ad charge on persons posting ads in its adult services section, a fee that had to be paid with a valid credit card. Craigslist said that this provision was designed to make it easier for law enforcement officers to locate the person who placed an ad, again discouraging illegal content.
As the legal basis for his claims against Craigslist, the Sheriff cited Chicago Municipal Code §8-8-020, which provides that "no person shall knowingly direct, take, transport . . . any person for immoral purposes or assist any person by any means to seek or find a prostitute." He claimed that Craigslist's ads performed this very function -- helping people find prostitutes.
District Court Judge John Grady rejected Sheriff claims on Communications Decency Act (CDA) grounds. 47 U.S.C. § 230. The CDA provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The CDA has been consistently held to provide immunity from prosecution from tort, civil rights and state criminal laws for operators of interactive websites.
The exceptions to CDA immunity are where the website operator is held to be the co-creator of the illegal content or where it induces a third party to post the illegal content. See, e.g., Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008); Hy Cite Corp. v. Badbusinessbureau.com, 418 F.Supp.2d 1142, 1148-49 (D. Ariz. 2004). By statute, CDA immunity also does not apply to violations of intellectual property laws, federal criminal laws or federal wiretap laws.
Here, the Court held that under the provisions of the CDA, Craigslist could not be treated as the provider of the information included in its ads -- because it did not create the ads. Nor could the mere fact that it created a service through which third parties could use to illegal purposes subject it to liability for "facilitating" and "assisting" this illegal activity. Mere intermediaries, like phone companies and transportation companies, are not liable for aiding and abetting customers who misuse their services to commit unlawful acts. Doe v. GTE Corp., 347, F.3d 655, 656-57 (7th. Cir. 2003).
Sheriff Dart argued that Craiglist was more than an mere intermediary or publisher, but that its creation of an "erotic" or "adult" services category, subcategories like "w4m" and permitting users to search its lists based on preferences were inducements to users to post unlawful ads. Judge Grady rejected this argument -- because each of the elements the Sheriff cited could also be used to induce the placement of lawful ads. For example, the "adult" and "w4m" categories could be used for a woman advertising exotic dancing for male clients -- a adult service, but not prostitution. The word search function was a completely "neutral tool", as held in other cases. See Roommates.com, 521 F.3d at 1167. Judge Grady also stated that the Sheriff's argument that Craigslist was promoting prostitution was "undercut by the fact that Craigslist repeatedly warns users not to post such content."
Judge Grady concluded that the CDA "would serve little if any purpose if companies like Craigslist were found liable for "causing" or "inducing" users to post unlawful content . . . " So Craigslist gets off -- at least for now. The CDA does not provide immunity for violations of federal criminal law. A prosecution brought under something like the federal RICO statute might come out differently.
The result in this case is likely to raise a tinge of cynicism in the minds of many readers. Judge Grady apparently believed that Craigslist's warnings and other actions meant that it wasn't encouraging posting of prostitution ads. However, Sheriff Dart stated that despite these changes, "users routinely post advertisements in the erotic-services category "openly promis[ing] sex for money." So taking steps that at least give the appearance of discouraging illegal activity can help you get CDA immunity, even if those steps are ineffective.
Nevertheless, here are some tips, based on the holding in Dart v. Craiglist and related cases, for websites who wish to walk the line, but still stay on the good side of the CDA and criminal law:
• Don't directly assist advertisers in creating the ads they post on your site, or you may be deemed a co-creator of their content. Providing neutral tools, like an on-line thesaurus, is OK.
• If you create categories under which posters can list their content, make sure that the category titles can be used for at least some legal content. For example, while "adult" services could be used for legal content, creating a "cocaine for sale" category is likely to get you held liable for inducing criminal activity.
• Create a "Terms Of Use" section that forbids the posting of illegal content. Place additional warnings against the posting of illegal content in sections that are likely to be abused by users.
• Cooperate with law enforcement authorities, to the extent permissible under privacy and other applicable laws.
• Don't forget that the CDA does not provide immunity from intellectual property laws, federal criminal laws or federal wiretap laws.
If you have any questions about how a website would fare under the Communications Decency Act, please feel free to contact me.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
