Washington Journal of Law, Technology & Arts


Jeffrey R. Doty


Since its enactment in 1996, § 230 of the Communications Decency Act has shielded Web site operators from liability arising out of third-party content. The statute preempts any claim that would treat the defendant as a “publisher” or “speaker” of that content, but recent cases suggest that a defendant’s own statements may constitute an independent source of liability beyond the scope of § 230. In Mazur v. eBay, a federal district court held that § 230 does not bar claims of fraudulent misrepresentation when a defendant has described a third party’s auctioning procedures as “safe.” More recently, the Ninth Circuit in Barnes v. Yahoo! allowed a promissory estoppel claim to proceed against a defendant that failed to remove defamatory material from its Web site after assuring the plaintiff it would do so. A third case, Goddard v. Google, suggests that the Barnes decision could support claims by third-party beneficiaries as well. This Article analyzes these recent developments, discusses their potential impact on representations in marketing and terms of use, and assesses the willingness of courts to consider more expansive fraud- and contract-based limitations on § 230 immunity.

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