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Ninth Circuit Court of Appeals Considers Internet Service Provider’s Liability for Fake Profiles

By Ezra Pinsky – Edited by Dmitriy Tishyevich
Barnes v. Yahoo!, Inc., May 7, 2009, No. 05-36189.
Slip Opinion

On May 7th, the Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a district court’s 12(b)(6) dismissal of a complaint which had sought to impose negligence liability on Yahoo for hosting a fraudulent personals profile created by the plaintiff’s ex-boyfriend, despite plaintiff’s requests that it be removed and Yahoo’s assurances that it would be.  The district court dismissed the claim, holding that Section 230(c)(1) of the Communications Decency Act immunized Yahoo from liability.  Writing for the Court of Appeals, Judge O’Scannlain affirmed in part, upholding the district court’s finding that Section 230(c)(1) protects Yahoo from negligence liability for third-party tortious material hosted on its website.  However, the court reversed in part and remanded, holding that Section 230(c)(1) does not protect Yahoo from a promissory estoppel claim if they promised to remove such content but failed to follow through.

Marc Randazza of the Citizen Media Law Project and Daniel Solove of Concurring Opinions provide overviews of the decision.  Eric Goldman of the Technology and Marketing Law Blog criticizes the opinion for being “filled with gratuitous and dangerous dicta, sloppy reasoning and sloppy language.”

The district court held that Barnes, whose ex-boyfriend posted fraudulent and harmful personal profiles of her on a website operated by Yahoo, could not maintain a negligence claim against the company.  In so doing, it relied on Section 230(c)(1), which, under certain circumstances, makes Internet service providers immune from liability for material that is published on their website by third parties by not treating the providers as publishers or speakers of that information.  Goldman summarized the district court’s decision.

The Ninth Circuit affirmed in part by recognizing that despite Barnes’ attempt to bypass Section 230(c)(1) by suing Yahoo for negligence rather than defamation, Yahoo would nevertheless be immune from liability if Barnes’ cause of action sought to treat the company as a “publisher or speaker” of harmful material provided by a third party.  The court concluded that Barnes’ tort claim would treat Yahoo as a publisher, noting that “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” The negligence claim was therefore barred by Section 230.

However, the court also noted that Barnes’ complaint cited “Yahoo’s ‘promise’ to remove the indecent profiles and her reliance thereon to her detriment,” which it construed as a promissory estoppel claim, a form of liability that lies in breach of contract rather than negligence.  The court determined that “Barnes does not seek to hold Yahoo liable as a publisher or speaker of third party content, but rather as the counter-party to a contract, as a promisor who has breached.”  The potential liability would be based on Yahoo’s manifested intention to remove the content, which it ultimately did not do.  The court held that if Yahoo had made a promise with the constructive intent that it be enforceable, it implicitly agreed to waive its Section 230(c)(1) immunity upon breach of that promise.  The court remanded the case to determine if Yahoo’s assurance of action in fact qualified as such a promise.

Daniel Solove points out that this decision may have negative consequences by deterring Internet service providers from taking a firm stand on removing tortious material from their website.  As the Ninth Circuit noted, “this makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.”  Solove observes that consequently, instead of making a strong effort or providing any assurance that may be construed as a promise, providers will “hide under Section 230′s umbrella by weakening promises to take down harmful content.” 

Eric Goldman suggests that this promissory estoppel decision should not substantially change Section 230 jurisprudence because promissory estoppel claims are very difficult to win.  Additionally, websites will still be able to avoid liability by being careful with their words.  However, he points out that the ability of plaintiffs to raise this claim will still have negative consequences, since it will allow them to “get further into the litigation process (to the summary judgment stage or even to trial) and substantially raise the costs of a 230 defense.”

In a recent update, Goldman also notes that Yahoo, supported by an amicus brief from a coalition of public interest groups, has petitioned for a rehearing en banc.  Yahoo is seeking rehearing of the panel opinion’s holding that Sec. 230 provides an affirmative defense that must be asserted by responsive pleading, and may not justify dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Citizen Media Law Project analyzes the legal merits of the petition and of the Ninth Circuits ruling. CMLP also hosts the petition here.

Posted On May - 23 - 2009 Comments Off

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