As many of you may recall, the Ninth Circuit declared that Yahoo! was not responsible for the publication of fake profiles on its site (thanks to section 230 of the Communications Decency Act), but also kept the suit alive to determine whether Yahoo! was liable to the plaintiff under a theory of promissory estoppel after a Yahoo representative allegedly promised to remove the profiles but never did. When the opinion first came out, Goldman pounced on the decision for
setting yet another example of poorly reasoned, shoddy section 230
jurisdprudence from the Ninth Circuit. Almost two years before, a
panel of the Ninth Circuit released the widely-derided opinion in Fair Housing Council v. Roommates.com, a decision that the Ninth Circuit later had to clean up in en banc proceedings.
sides of the Barnes decision requested a rehearing, and the court ended
up siding with Yahoo's arguments and granting most of the requests made
by the company and the amici filers.
The court's amended opinion
first eliminates a section stating that section 230 was an affirmative
defense that couldn't carry a 12b6 motion to dismiss. Next, the new
opinion adds a footnote explaining its absurd statement in the original
decision that section 230 only applies to state law claims. The
footnote clarifies that the original opinion only limited section 230
to state law claims because only state law claims were presented in the
This sounds more like an attempt to cover up an
embarrassing mistake in the original opinion than a legitimate
explanation to me, but it's an important legal distinction to make, so
I'm glad the court slipped it in.
Goldman thinks that the changes will probably satisfy the litigants and
the case will return to the district court for resolution of the
promissory estoppel claim:
I would be surprised if there are further appeals to the Supreme Court
at this point. As a result, I believe this case is now effectively
ready for further proceedings on remand on the promissory estoppel
He also thinks that Yahoo might want to avoid having a court peer to
closely into its internal decisionmaking, and thinks that Yahoo should
go ahead and settle the case quietly.
Personally, from the limited material I've seen, Yahoo might find it
prudent to cut short further proceedings and settle up rather than have
its choices scrutinized too carefully.
That's probably good advice. No company wants details of its inept refusal to remove false and sexually explicit profiles from its site aired in open court.