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Has Section 230 immunity passed its apex?

By Evan Brown

Barnes v. Yahoo!, Inc., No. 05-36189, 9th Cir. May 7, 2009

Yesterday’s decision from the Ninth Circuit in Barnes v. Yahoo is kind of a big deal. Jeff Neuberger observes that Section 230 took a hit. Characterizing it differently, Thomas O’Toole called it a nice win for online publishers. I’m thinking that the halcyon days of robust Section 230 immunity may be on the wane.

Barnes alleged that her ex-boyfriend did some pretty rotten things using various Yahoo services. Since I think my mom reads my blog I won’t elaborate on Prince Charming’s shenanigans. But if the allegations are true, one can understand why Barnes would be mad. Simply stated, they involved nude photos and men looking to cavort showing up where Barnes worked.

Barnes contacted Yahoo and asked it to take the offending content down. Folks there said they would. Months later, when the content remained online, Barnes sued Yahoo for negligent undertaking and promissory estoppel.

The district court dismissed Barnes’ claims, holding that 47 U.S.C. 230 protected Yahoo because, according to that section, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

It’s no big surprise that the appeallate court affirmed the lower court on the question of negligent undertaking. Barnes’ claim was that Yahoo was negligent in undertaking to remove the content. Since the removal of content is one of the quintessential functions of a publisher, it would contravene Section 230 to hold Yahoo liable for that.

The more intriguing part of the case comes from the court’s reversal on the question of promissory estoppel. Yahoo’s breach of an alleged promise to remove the content was of a different nature than the act of removing the content. “Promising is different because it is not synonymous with the performance of the action promised.” Liability arising from failing to live up to that promise was outside the scope of Section 230. In other words, pursuing Yahoo for breaking its promise to take down the offending content did not treat it as the publisher or speaker of that content.

This holding seems to be another chip away at Section 230 immunity. Smart intermediaries (e.g. website operators) are likely to communicate less now with individuals who feel aggrieved, because the intermediary may fear that anything it says could be construed as a breakable promise putting it at risk for liability.

Full post as published by InternetCases.com on May 08, 2009 (boomark / email).