The 1996 Communications Decency Act, 47 U.S.C. §230 immunizes an internet service provider from tort liability stemming from its failure to honor promises to remove objectionable material posted by a Cases of Interest >  Cyberlaw >  230

Barnes v Yahoo!

NOTE: This case will be updated when more publishing information is released.

Name: Barnes v. Yahoo!, Inc.

Cite: (not yet published) ( ) F.3d ( ), C.A.9 (Or.) 2009

URL to Opinion: http://www.ca9.uscourts.gov/datastore/opinions/2009/05/07/05-36189.pdf

Lexis: (not yet on Lexis)

Westlaw: 2009 WL 1232367

Court: Ninth Circuit Court of Appeals

Date of Decision: May 7, 2009

The 1996 Communications Decency Act, 47 U.S.C. §230 (“CDA §230”) immunizes an internet service provider from tort liability stemming from its failure to honor promises to remove objectionable material posted by a third party, but provides no defense against liability based on breach of contract theories.

Procedural Posture:
Plaintiff filed suit in state court alleging the tort of negligent non-removal and a breach of contract claim of promissory estoppel. Yahoo! removed to federal court and filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), alleging that CDA §230 provides a complete immunity against both causes of action. The district court granted the motion to dismiss. The plaintiff filed a timely appeal claiming, first, that §230 immunity did not apply, and second, that even if it did Yahoo! did not fit within its requirements. The Ninth Circuit Court of Appeals affirmed that CDA §230 provided a complete bar to the plaintiff’s tort claim, but reversed the district court on the second claim, holding that CDA §230 does not bar liability based on breach of contract. Accordingly, it remanded to the district court the question of whether Yahoo! made a sufficiently clear and intentional promise to remove the defamatory material.

In late 2004, plaintiff broke off a lengthy relationship with her boyfriend. He responded by creating unauthorized and fraudulent profiles of the plaintiff on Yahoo! message boards. In these profiles he posted nude photographs of her, taken without her knowledge, as well as accurate contact information and express or implied sexual solicitation. Using these fake profiles, he also posed as the plaintiff in online chat rooms, thereby spurring a large number of sex-seeking emails, phone calls, and personal visits.

The plaintiff followed Yahoo! policy by mailing Yahoo! a copy of her driver’s license, denying involvement with the creation of the profiles, and requesting their removal. After Yahoo! failed to respond in the first month, the plaintiff sent two more requests. One day before a local news program was to air a report on the incident, Yahoo!’s Director of Communications personally called the plaintiff; he promised to “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Relying on that statement, plaintiff set no further requests to Yahoo!. After an additional two months, the plaintiff filed suit in state court. Only then were the fraudulent profiles deleted by Yahoo!.

The court construed the plaintiff’s complaint in the most favorable light to allege two causes of action. First, she alleges a tort for the negligent non-provision of services (i.e., removal) which Yahoo! undertook to provide under the Restatement (Second) or Torts, §323 (“negligent non-provision”). Second, she alleges a contract claim for promissory estoppel under the Restatement (Second) of Contracts, §90 (“promissory estoppel”).

  • CDA §230 bars liability for an ISP’s negligent non-removal of defamatory material published by a third party.
  • CDA §230 does not insulate an ISP from publisher liability under a breach of contract/promissory estoppel claim.

Relevant Dicta/Reasoning:
  • Although the Ninth Circuit chose not to “fuss” over the improper pleading of §230 because of concerns over judicial economy, it nonetheless reiterated that §230 is an affirmative defense. Because it does not mean that plaintiff has failed to state a claim, it should be raised in responsive pleadings, not in motions to dismiss.

  • The Ninth Circuit interpreted §230 in light of both its text and its underlying policies as explained in §230(a) and (b), namely to promote the “free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive and obscene material.” (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003)).

  • To determine whether a plaintiff’s theory of liability requires the court to treat the defendant as a “publisher or speaker” of another’s content, and thus fall within CDA §230(c)(1)’s protections, the court must consider whether the duty the defendant allegedly violated derives from its status as a publisher or speaker, I.e., whether the court is “inherently required” to treat the defendant as a publisher or speaker based on the plaintiff’s cause of action.

  • Relabeling the cause of action as negligent non-removal instead of third-party defamation does not permit the defendant to be held liable. Because publishers remove content, and because without §230 Yahoo! could be sued for defamation, imposing liability based on a failure to remove would require the court to treat Yahoo! as a publisher, and publisher liability is barred under CDA §230.

  • The Ninth Circuit refused to enter the academic, post-Zeran debate regarding whether CDA §230 applies only to primary publishers or whether it also applies to distributors/secondary publishers. Despite the legislative intent to overrule the defamation-based Stratton Oakmont, the Ninth Circuit refused to decide more than that the statutory language clearly insulated Yahoo! from liability under a “negligent non-removal” theory.

  • Although Yahoo! allegedly promised to remove material, and that falls within its conduct as a publisher, contract liability differs from tort liability. In this case, Yahoo! may be contractually liable because its outward manifestation of intent to remove created a separate legal duty. To do so, however, would require more than a mere monitoring policy or even an attempt to help an individual; rather, it would require a clear promise and an objective manifestation of intent to be bound. If Yahoo! intended its promise to be enforceable, that promise may also be viewed as a waiver of CDA §230’s baseline protections.

Future Importance:
Barnes v. Yahoo! creates another loophole through which plaintiffs can hold ISPs liable despite CDA §230’s general bars on liability. Now (in the Ninth Circuit, at least), any ISP or blogger who promises to remove material waives its CDA §230 protections; accordingly, it must follow through and remove that material or else may be liable under a theory of promissory estoppel. This case leaves unanswered the relevant damages under a breach of contract claim, however, since the plaintiff would be barred from seeking damages for defamation.

Because the district court did not address CDA §230(c)(2) in regard to the plaintiff's breach of contract claim, the Ninth Circuit opinion does not address whether it would bar liability on the theory of promissory estoppel.

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