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Barnes v. Yahoo: Section 230 Does Not Insulate Online Service Provider From Contractual Liability

By Marc Randazza

This is an interesting Section 230 decision from the Ninth Circuit that shows where the line is between Section 230 immunity and Section 230 liability. It should also serve as a cautionary tale for online service providers including bloggers who allow comments.

Ms. Barnes' ex-boyfriend is a bit of a douchebag. After they broke up, he created a fake personals ad for her on Yahoo and impersonated her on various online forums:

Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo?s online ?chat rooms,? posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes? place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex. (Op. at 5315-16)

Barnes demanded that Yahoo take the information down, but Yahoo was not very responsive -- even though it had a policy providing for the removal of fake profiles if the complaining party provided a copy of her drivers' license.

During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would ?personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.? Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo?s website, apparently never to return. (Op. at 5316)

This is where Yahoo messed up.

Barnes attempted to plead around Section 230 in a number of creative ways. She claimed that since Section 230 only relieved online service providers of being held to be the publisher of defamatory material, that did not relieve Yahoo of the obligation to take down allegedly defamatory material. Barnes then tried to argue that Section 230 only applies to websites that try and remove some objectionable material.

Leaving no stone unturned, Barnes reminds us that the statutory purpose of the Amendment is to encourage websites affirmatively to police themselves, not to provide an excuse for doing nothing. This argument from statutory purpose has more force to it, because section 230(c) is, after all, captioned ?Protection for ?good samaritan? blocking and screening of offensive material.? Cf. Roommates, 521 F.3d at 1163-64. It would indeed be strange for a provision so captioned to provide equal protection as between internet service providers who do nothing and those who attempt to block and screen offensive material. As the Seventh Circuit has recognized, if section (c) did provide equal protection, then ?[internet service providers] may be expected to take the do-nothing option and enjoy immunity? because ?precautions are costly.? GTE Corp., 347 F.3d at 660. (Op. at 5328-29)

Although none of her key arguments made it around Section 230, she did have one persuasive theory: Breach of contract. As noted above, Yahoo engaged in discussions with Barnes and promised to remove the material. However, Yahoo failed to do so.

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline. Therefore, we conclude that, insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action. (Op. at 5335)

The moral of the story? If you are an online service provider (including a blogger who allows comments on your blog) and someone calls you up or emails you and asks that you remove objectionable material, you have two choices: 1) You can refuse to do so and rest assured that Section 230 will likely provide you with immunity; or, 2) If you say you will remove the material, follow through on your promise to do so, because once you say you will, you have modified the "baseline rule" of Section 230.

Full post as published by Citizen Media Law Project on May 07, 2009 (boomark / email).