UPDATE: The Ninth Circuit issued an amended opinion on June 22, 2009, see discussion below. The amended opinion included an order denying the parties’ petitions for rehearing and rehearing en banc.
Many attempts have been made to plead around the immunity provided to interactive computer services under Section 230 of the Communications Decency Act, and only a very few such attempts have succeeded. Here’s one that has succeeded at least to the point of getting a remand back to the district court. The appeals court concluded that the victim of the "incedent" false profiles posted on Yahoo! by a spurned boyfriend may have a cause of action against Yahoo! for allegedly promising to remove the profiles, then failing to do so.
Barnes v. Yahoo!, Inc., No. 05-36189 (9th Cir. May 7, 2009).
The plaintiff alleged that her boyfriend posted "incedent" profiles of her on Yahoo! that included nude photographs taken without her knowledge and solicitations for sex. He also posed as the plaintiff in Yahoo chat rooms. The profiles on Yahoo! included real contact information, resulting in unwanted communications to the plaintiff from men seeking sex. The plaintiff alleged that she followed Yahoo’s policy in requesting the removal of the information, but after promising to remove the profiles Yahoo took no action for several months.
The plaintiff sued under Oregon law for negligent provisions of services and negligent undertaking. The appeals court also concluded that, to the extent that the plaintiff claimed that she relied on Yahoo’s promise to remove the profiles, she stated a breach of contract claim based upon promissory estoppel. Yahoo! prevailed on a motion to dismiss in the district court, which found that Section 230 protected Yahoo! as a matter of law.
The Ninth Circuit panel held that Section 230 bars the plaintiff’s negligent provisions of services / negligent undertaking claim, but remanded for further consideration of the promissory estoppel claim, because promising to remove content (as opposed to merely failing to remove it) is not necessarily the act of a publisher:
Promising is different because it is not synonymous with the performance of the action promised. That is, whereas one cannot undertake to do something without simultaneously doing it, one can, and often does, promise to do something without actually doing it at the same time. Contract liability here would come not from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be legally obligated to do something, which happens to be removal of material from publication. Contract law treats the outwardly manifested intention to create an expectation on the part of another as a legally significant event. That event generates a legal duty distinct from the conduct at hand, be it the conduct of a publisher, of a doctor, or of an overzealous uncle. The case was remanded for further consideration of the plaintiff’s contract claim.
The case was remanded for further proceedings on the plaintiff’s contract claim. Note that the lower court also did not consider whether the plaintiff’s cause of action was precluded under CDA Section 230 (c)(2), so that issue remains for consideration on remand.
UPDATE: In its amended opinion issued June 22, 2009, the Ninth Circuit addressed two issues that were raised by Yahoo! in its petition for a rehearing and rehearing en banc. The court withdrew Part II of the opinion which stated that Section 230 claims should be raised as an affirmative defense in an answer rather than on a pre-answer motion to dismiss. The court also clarified a footnote that had suggested that CDA Section 230 applies only to state law claims. The importance of these issues is discussed by Prof. Eric Goldman on his blog.