To the great frustration of plaintiffs and their attorneys, and even some judges, courts have construed Section 230 of the Communications Decency Act in such a way as to make it virtually impossible to hold a Web site operator liable for defamatory material that is posted on the site by a third party, even if the operator has knowledge of the defamatory nature of the material and refuses to remove it. Many plaintiffs have tried to plead around the robust protection provided by Section 230, but only a very few have succeeded. One of them is Cecilia Barnes, who alleged that she was defamed by false dating profiles posted by an ex-boyfriend on Yahoo!’s dating Web site. Any claim that Yahoo! was liable for the posting of the profiles by the ex-boyfriend is precisely the sort of claim that is barred by Section 230. But Barnes claimed that a separate promise by a Yahoo! employee to remove the profiles was not precluded.

Earlier this year, in Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit agreed with Barnes. The court concluded that because her claim alleged a separate undertaking by Yahoo!, distinct from the act of publishing the profiles, it did not implicate the Section 230 provision that bars holding a Web site operator liable as the “publisher” of information provided by a third party. The circuit court remanded the case for further consideration of Barnes’s surviving claim, which has now withstood a further motion to dismiss in the district court in Barnes v. Yahoo!, Inc., 2009 U.S. Dist. LEXIS 116274 (D. Ore. Dec. 8, 2009).

Yahoo moved to dismiss Barnes’s remaining claim on the ground that she had failed to allege sufficient facts from which the court could reasonably infer a valid claim of promissory estoppel. Under Oregon law, the court noted, such a claim requires: “1) a promise; 2) which the promisor could reasonably foresee inducing the sort of conduct which occurred; 3) actual reliance on the promise; 4) resulting in a substantial change in the promisee’s position.” Yahoo! argued that Barnes failed to show reliance or a substantial change in her position as a result of the alleged promise.

To resolve the motion, the court delved into the factual specifics of Barnes’s claim that a Yahoo! employee made an actionable promise. According to Barnes, she attempted unsuccessfully over a period of three months to have the defamatory profiles removed from the Yahoo! site, but when a reporter contacted Yahoo! in preparation for a news story about Barnes’s situation, a Yahoo! employee contacted Barnes, and allegedly promised her that she would personally contact the appropriate personnel and “take care of” having the profiles removed. Barnes then called the reporter, essentially calling off the story on the ground that the profiles would be removed. The profiles were not in fact removed, however, until some time later when Barnes filed her action.

As to Barnes’s “reliance” on Yahoo!’s alleged promise, the court concluded that “it is reasonable to conclude” that the Yahoo! employee’s call to Barnes was for the purpose of heading off the news story before it aired, and that it could be inferred that the employee intended for Barnes to react to the promise by calling the reporter and squelching the story. Thus, the court reasoned, there is a “reasonable and plausible” inference that Barnes relied on the employee’s promise.

As to the element of “substantial change” in Barnes’s position, while the court regarded the sufficiency of the facts as a closer question, the court concluded that there were sufficient facts from which inferences could be drawn that supported Barnes’s theory:

As stated above, however, a reasonable inference from plaintiff’s amended complaint is that defendant was concerned about the potential for negative attention from a television news story focusing on defendant’s indifference to plaintiff’s plight. A further reasonable inference is that defendant was focused on removing the unauthorized profiles solely in relation to diffusing the potential news story. After plaintiff’s phone call to the reporter, defendant realized the story was not going to air – or that it would portray defendant in a better light – and thus plaintiff’s profiles no longer presented a pressing issue requiring defendant’s immediate attention. Indeed, the amended complaint specifically alleges that defendant only removed the profiles after plaintiff filed this action.

Thus, the court concluded, Barnes’s position “could have substantially changed in that the profiles remained on the web longer than they would have absent plaintiff’s reliance.”

It remains to be seen, of course, whether Barnes will be able to prove the facts as alleged. It does not appear from a review of the docket that a trial date has been set.

Although the Barnes v. Yahoo! case is significant for the fact that the plaintiff was able to define a claim that survived Section 230 immunity, it is difficult to view it as other than peculiar to its unique facts, which seem unlikely to recur in future cases. In particular, in rejecting the motion to dismiss, the court relied heavily on the possibility of a news story concerning the plaintiff as the basis for finding that the element of reliance was factually supported.

Nevertheless, Web site operators would be wise to educate their employees regarding the proper handling of requests to remove allegedly defamatory content, in order to avoid generating a claim that might survive the summary judgment stage of litigation.