After the relationship ended, her former boyfriend created fake profiles for Barnes on Yahoo! websites containing nude and semi-nude photographs and a solicitation for sex. The ex also went on chat rooms posing as Barnes and directed men to these fake profiles, which also contained the contact information for Barnes' work. Before too long, men began calling and showing up at Barnes' place of
employment expecting sex. According to the complaint, Barnes asked
Yahoo! to remove the profiles in writing, but after four letters had
not received a response. Finally, just before a local TV news program
ran a story on the fake profiles, Yahoo!'s Director of Communications
allegedly contacted Barnes and promised that she would take action to
have the profiles removed.
Barnes asserts that the profiles were still up on the site two months
after this promise, and that Yahoo! only removed them after she filed
the current lawsuit.
Barnes charged Yahoo! with negligently carrying out its agreement to remove the profiles and with breaking its promise to deal with the profiles immediately.
The 9th Circuit held last Thursday that Section 230 of the Communications
Decency Act granted Yahoo! immunity for the negligent undertaking
portion of Barnes' claim. Section 230 states that "[n]o provider or
user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
The court found, and Barnes did not contest, that Yahoo! is an
"interactive computer service." The court then declared that Section
230 barred the negligent undertaking claim since the undertaking in
question was the de-publication of third-party material. The court
interpreted Section 230 to block a claim that would be based on an
interactive computer service's actions as a publisher, and held that
the district court correctly dismissed that portion of the action.
The court determined that the opposite held true for Barnes' claim
based on promissory estoppel, since the promise to engage in the
activities of a publisher is not the same thing as actually engaging in
the activities of a publisher, according to the court. Since the
promissory estoppel claim didn't involve treating Yahoo! as a publisher
of the information from a third-party, the court said, Section 230 did
not prevent the suit from moving forward.
In distinguishing between the two claims, Judge Diarmuid O'Scannlain
wrote that "[p]romising is different [from undertaking], because it is
not synonymous with the performance of the action promised."
Unfortunately for Barnes, however, this is not the end of the road.
She still has to go back to the district court and prove that there
even was a promise to remove the profiles at all. And even if she can
do that, the court suggested that Yahoo! might have an affirmative
defense to that claim under a different section of the CDA.
See Also: Court Ruling: Section 230 Protects Sites... But Not Necessarily If They Promise To Remove Content (Techdirt)