Barnes v. Yahoo, Inc.

Citation: Not availableDocket: 05-36189

Court: Court of Appeals for the Ninth Circuit; June 22, 2009; Federal Appellate Court

Original Court Document: View Document

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The United States Court of Appeals for the Ninth Circuit, in the case of Cecilia L. Barnes v. Yahoo, Inc., has issued an amended opinion regarding an appeal from the District Court for the District of Oregon. The panel, consisting of Judges O’Scannlain, Graber, and Callahan, addressed the issue of whether the Communications Decency Act (CDA) of 1996 provides immunity to an internet service provider when it attempts to remove harmful content but fails to do so. 

The case arose after Barnes's ex-boyfriend posted unauthorized and damaging profiles of her on Yahoo's website following the end of their relationship. The court amended its earlier opinion, clarifying that their discussion of CDA Section 230(c)(1) is limited to state law claims, as only state law claims are present in this case. The court noted that it has previously recognized the CDA's applicability to federal law claims but stated that this particular case does not require an evaluation of that issue.

Additionally, the court granted motions from various organizations to file amici curiae briefs in support of the appeal. Both parties’ petitions for rehearing and rehearing en banc were denied, with no active judge requesting a vote on the matter. The ruling confirms that no further petitions for rehearing may be filed.

Nude photographs of Barnes and her boyfriend were posted online without her consent, along with a solicitation for sexual intercourse. Barnes' ex-boyfriend created fraudulent profiles and engaged in discussions in Yahoo's chat rooms, directing men to contact her at her workplace, leading to unwanted advances. Despite Barnes sending a photo ID and a signed denial to Yahoo, requesting the profiles' removal, no action was taken for over a month, prompting her to follow up multiple times. Just before a local news report on the incident, a Yahoo representative assured Barnes that she would personally ensure the profiles were removed, which led Barnes to refrain from further action. However, after two months of inaction, she filed a lawsuit against Yahoo in Oregon state court. The complaint alleges negligence for Yahoo's failure to remove the profiles and a breach of promise based on the representative’s assurance. After Yahoo removed the case to federal court, it moved to dismiss, claiming immunity under section 230(c)(1) of the Communications Decency Act. The district court granted this motion, ruling that the Act protected Yahoo from liability for the content posted by Barnes' ex-boyfriend. Barnes appealed, arguing that the immunity did not apply to her claims and that Yahoo did not qualify for such immunity. The discussion includes an overview of section 230, highlighting Congress's intent to protect internet platforms from certain lawsuits.

The statute aims to foster interactive computer services and a competitive market for these services while promoting parental control over children's access to inappropriate online content. It establishes two primary goals: facilitating the free exchange of information and encouraging the voluntary monitoring of offensive material. The key section, 230(c), provides protections for "good Samaritan" actions taken by service providers against liability for content provided by third parties. Specifically, subsection (c)(1) states that providers or users of interactive computer services are not considered publishers or speakers of third-party information, thus preventing liability under state or local laws inconsistent with this statute. However, it does not confer a blanket immunity from liability regarding third-party content, as emphasized in case law. The protection only applies when a service provider is being treated as a publisher or speaker under a state law cause of action. In this case, Yahoo qualifies as an interactive computer service provider, and the dispute centers on the interpretation of "publisher or speaker" within this framework.

Section (c)(1) of the statute provides immunity for internet service providers, preventing them from being classified as the "publisher or speaker" of third-party content in certain legal actions, particularly related to defamation. The primary inquiry is determining when a plaintiff’s claims would classify the defendant in this manner. While defamation is commonly associated with these cases, the statute's language is not limited to defamation; it applies to various causes of action that involve the publication of third-party content.

Potential claims against providers include violations of anti-discrimination laws, fraud, negligent misrepresentation, and false light claims. The critical factor is whether the plaintiff's alleged violation stems from the defendant's role as a "publisher or speaker." If it does, section 230(c)(1) prevents liability. 

Publication, as defined, includes activities such as reviewing and deciding whether to publish or remove third-party content. Any action involving the exclusion of material submitted for online posting falls under this immunity. The definition of a publisher encompasses reviewing, editing, and deciding on content publication, aligning with traditional editorial functions.

In evaluating whether Barnes's negligent undertaking claim seeks to hold Yahoo liable as a "publisher or speaker," the claim is based on section 323 of the Restatement (Second) of Torts, which outlines liability for failing to exercise reasonable care when undertaking services that protect another party's interests, provided such failure increases the risk of harm or the harm results from reliance on the undertaking.

Barnes contends that her tort claim does not classify Yahoo as a publisher, asserting that once Yahoo undertook to act through its agent, it had a duty to act reasonably. She argues that her claim is based on Yahoo's negligent undertaking of a service, rather than its role as a publisher, and thus should not fall under the protections of section 230(c). However, the court disagrees, stating that merely renaming the claim from defamation to negligence does not exempt it from section 230(c) protections. The court explains that Barnes' allegation centers on Yahoo’s failure to remove indecent profiles posted by her former boyfriend, which is a publisher's action. Imposing liability for such conduct implies treating Yahoo as a publisher of the content it did not remove. The court references case law to illustrate that section 230 protects any decisions regarding the exclusion of third-party content, and notes that Yahoo could indeed face defamation liability for the conduct in question. The court cites a historical case where a bar owner was held accountable for the negligent maintenance of defamatory graffiti, highlighting that similar principles apply to Yahoo's situation. Ultimately, the court concludes that section 230(c)(1) bars Barnes' lawsuit, reinforcing that her claim relates to publishing conduct.

Barnes contends that even if subsection 230(c)(1) applies broadly, it does not cover her claim against Yahoo as a distributor rather than a publisher. This raises a debate stemming from the Fourth Circuit’s Zeran opinion regarding the definition of 'publisher' in subsection 230(c)(1) — whether it refers solely to 'primary publishers' or includes 'distributors' (secondary publishers) in defamation cases. In defamation law, publication involves communicating defamatory material, with each instance of repetition constituting a separate publication. Different liability standards apply to primary and secondary publishers: primary publishers face strict liability, while secondary publishers are liable only if they have actual or constructive knowledge of the defamatory content. Barnes argues that section 230 was enacted to counter the Stratton Oakmont decision, which held internet service providers liable as primary publishers. However, the Fourth Circuit in Zeran deemed distributor liability a subset of publisher liability. The court notes that it has previously acknowledged this issue but has not ruled on it. Importantly, the court concludes that it need not resolve this debate because section 230(c)(1) prevents courts from treating internet service providers as publishers in general, irrespective of defamation law. The statute does not specify defamation, and the court declines to impose defamation principles onto it, emphasizing that their prior ruling in Roommates demonstrates the broader application of section 230(c)(1) beyond defamation claims.

The excerpt addresses the legal interpretation and implications of Section 230(c) of the Communications Decency Act, particularly in relation to cases involving internet service providers and their liability for content. The Seventh Circuit notes that while Congress aimed to counter a specific court decision holding a provider liable for selective content hosting, the actual language of the statute is what defines its scope, rather than the original intent. The purpose of Section 230 is to encourage websites to actively monitor and manage content, suggesting that equal protection under the law should not extend to those who do nothing, as that would incentivize negligence due to cost concerns.

Section 230(c)(1) offers broad immunity for publication decisions regarding third-party content, while subsection (c)(2) provides additional protection for actions taken in good faith to restrict access to materials deemed obscene or objectionable. This means that even providers who may be liable under subsection (c)(1) can still seek immunity under (c)(2) if they take steps to limit access to inappropriate content. The court concludes that Barnes' negligent service claim against Yahoo is barred by Section 230(c)(1), affirming the district court's dismissal of her lawsuit.

Additionally, the excerpt touches upon the possibility of recasting Barnes' claim under promissory estoppel, indicating that liability under this theory differs from that of negligent undertaking, thus complicating the legal landscape regarding internet service providers' responsibilities.

Oregon recognizes promissory estoppel as a valid theory for recovery, as established in Bixler v. First Nat’l Bank of Or., which outlines four key criteria for enforceability: 1) a promise, 2) foreseeable inducement of reliance, 3) actual reliance on the promise, and 4) a substantial change in position due to that reliance. Promissory estoppel is not an independent cause of action but rather a subset of breach of contract claims, serving as a substitute for consideration. Generally, ordinary contract principles apply, and promises must be clear and well-defined, akin to traditional contracts that are supported by consideration. Courts enforce contracts based on the mutual intention of the parties to seek judicial remedies for breaches.

In the context of Barnes’ claim against Yahoo, the inquiry focuses on whether Yahoo could be considered a "publisher or speaker" under the relevant statute. The statute precludes liability based on a defendant’s role as a publisher or speaker, implying that any alleged duty arises from a contractual obligation. Barnes is not asserting a claim against Yahoo for publishing third-party content but is instead claiming a breach of contract based on Yahoo’s promises. This situation raises questions about the nature of the promises made by Yahoo, particularly regarding its obligations related to content removal, which may still fall under the scope of publisher conduct.

Various torts related to publishing, such as defamation or infliction of emotional distress, derive liability from actions that are akin to publishing or speaking. In tort law, undertaking an action involves performing that action, while promising differs as it does not require simultaneous execution. Therefore, liability in the context of Yahoo's alleged publishing conduct does not stem from the act of publishing itself, but rather from an expressed intention to undertake an obligation, specifically the removal of published material. This expressed intention creates a legal duty based on expectations rather than on the act of publishing.

A court cannot simply infer a promise from an inadequate attempt to de-publish material that might suggest tort liability. Although the historical evolution of contract law from the common law writ of assumpsit allows for some overlap between tort and contract, the distinct nature of promissory estoppel sets it apart from tort claims. Promissory estoppel, while sharing characteristics with tort, requires a clear and well-defined promise that could constitute a contractual offer. For a contract to be formed, both parties must manifest an objective intent to be bound by an agreement. Vague promises or general policies, such as those from Yahoo regarding content monitoring, do not meet this standard and thus do not create contract liability. Consequently, Yahoo can avoid liability by disclaiming any intent to be bound by such promises.

Consideration or reliance is necessary for the enforceability of a promise, but it is not sufficient on its own; the promise must also be worded to show an intention to be enforceable. The objective intention to be bound, which underlies promissory estoppel, indicates a waiver of certain defenses, including arguments regarding the absence of contract formation or the promisor's intent. Defenses such as lack of acceptance, meeting of the minds, unconscionability, duress, or incapacity typically cannot be waived if they undermine the promise's integrity. Once a court determines a promise is enforceable, it implies that the promisor has intended for the court to enforce that promise, thereby departing from standard legal rules governing relationships between strangers.

Subsection 230(c)(1) establishes a baseline rule of no liability for publishing content from other information service providers. If Yahoo made a promise intending it to be enforceable, it has implicitly accepted an alteration of this baseline rule. Therefore, Barnes' breach of contract claim based on promissory estoppel is not precluded by subsection 230(c)(1). The court only addressed Yahoo's affirmative defense in this appeal and did not evaluate whether Barnes has a viable contract claim or if Yahoo has a defense under subsection 230(c)(2). The court's ruling affirms in part, reverses in part, and remands for further proceedings, with each party responsible for its own costs.