by James Kachmar

On May 7, 2009, the Ninth Circuit issued its opinion in the case, Barnes v. Yahoo!, Inc. (No. 05-36189), in which it decided the issue of whether the Communications Decency Act of 1996 (“CDA”) protected Yahoo from a lawsuit where it allegedly promised to remove harmful material to the plaintiff from its website but failed to do so. 

In 2004, Cecilia Barnes broke up with her boyfriend and he responded by posting profiles of Ms. Barnes on a Yahoo website. The profiles contained nude photographs of Ms. Barnes and her ex-boyfriend that were apparently taken without her knowledge and the profiles included solicitations to engage in sexual intercourse. The ex-boyfriend also participated in discussions in Yahoo chat rooms in which he posed as Ms. Barnes and directed correspondents to the fraudulent profiles of Ms. Barnes he had created. In response to these profiles, several men contacted plaintiff, including visits to her office, all in the expectation of sex.

Pursuant to Yahoo’s policy, Ms. Barnes mailed Yahoo a copy of her ID and a signed statement denying her involvement with the profiles and requested their removal. When Yahoo did not respond to her statement, she again asked Yahoo to remove the profiles. She received no response.

Ms. Barnes sent Yahoo two more mailings over the following month and a local news program prepared to broadcast a report concerning the incident. One day before the broadcast, Yahoo’s Director of Communications called Ms. Barnes and asked her to fax her the previous statements she had mailed to Yahoo. The Director of Communications told Ms. Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Ms. Barnes claimed that she relied on this oral representation and took no further action regarding the profiles. Another two months passed with no action by Yahoo at which point Ms. Barnes filed a lawsuit against Yahoo.  (The profiles were taken down from Yahoo’s website shortly thereafter.) 

The Court construed Ms. Barnes complaint against Yahoo to assert two causes of action: (1) “negligent undertaking” under section 323 of the Restatement 2nd of Torts; and (2) a theory of promissory estoppel under section 90 of the Restatement 2nd of Contracts. Yahoo removed the action to federal court and its motion to dismiss the complaint was granted by the lower court which found that, under the CDA, Yahoo was immune from liability as a matter of law. 

The Ninth Circuit began by recognizing that section 230(c) of the CDA provides an affirmative defense and that procedurally, Yahoo should have raised this issue as an affirmative defense and then moved for judgment on the pleadings. Given that the lower court, however, had granted the motion to dismiss, the Ninth Circuit overlooked this procedural irregularity and considered the matter on the merits.

The Ninth Circuit recognized that section 230 of the CDA “protects certain internet-based actors from certain kinds of lawsuits.” The Legislative purpose was designed “to promote the free exchange of information and ideas over the internet and to encourage voluntary monitoring for offensive or obscene materials.” 

Under section 230(c)(1) of the CDA, “[n]o 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.” Yahoo’s motion to dismiss was based exclusively on this section and it argued that courts were barred “from treating certain internet service providers as publishers or speakers.” Although the Ninth Circuit disagreed with the breadth of Yahoo’s argument, it concluded that section 230(c)(1) “only protects from liability (1) a provider or user of an interactive computer service (2) when plaintiff seeks to treat under a state law cause of action as a publisher or speaker (3) of information provided by another information content provider.” 

The Ninth Circuit focused on whether plaintiff’s two causes of action required Yahoo to be treated as a “publisher or speaker” in order to impose liability. The Ninth Circuit recognized that defamation is the most frequently-associated cause of action with section 230 of the CDA. In fact, the CDA had been enacted in response to a prior case holding an internet service provider liable under a defamation cause of action. The Ninth Circuit concluded, however, that “a law’s scope often differs from its genesis” and that section 230 was not limited in its application to defamation cases. Rather, the Ninth Circuit concluded that “what matters is whether the cause of action inherently requires the Court to treat the defendant as the `publisher or speaker’ of content provided by another.”

As to her negligent undertaking cause of action, plaintiff argued that it did not treat Yahoo as a publisher, but rather, Yahoo was one who undertook to perform a service and did it negligently. The Ninth Circuit rejected this argument and concluded “a plaintiff cannot sue someone for publishing third party contents simply by changing the name of the theory from defamation to negligence.” 

Barnes also attempted to distinguish Yahoo by claiming it was a “distributor” and not a “publisher” of the harmful content. The Ninth Circuit, however, declined to resolve the issue of this distinction and ruled “section 230(c)(1) precludes courts from treating internet service providers as publishers not just for the purposes of defamation law, with its particular distinction between primary and secondary publishers, but in general.” Thus, the Ninth Circuit concluded that the trial court properly dismissed plaintiff’s negligent undertaking cause of action.

The Ninth Circuit concluded differently, however, as to plaintiff’s other cause of action for promissory estoppel theory under contract law. The Ninth Circuit focused on whether this theory of recovery would treat Yahoo as a “publisher or speaker” under the CDA.

The Ninth Circuit recognized that “in a promissory estoppel case as in any other contract case, the duty that defendant allegedly violated springs from a contract – an enforceable promise – not from any noncontractual conduct or capacity of the defendant.” The Ninth Circuit recognized that plaintiff did not seek to hold Yahoo liable under this cause of action “as a publisher or speaker of third party content but rather as the counterparty to a contract as a promissory who has breached.” 

The Court distinguished plaintiff’s promissory estoppel claim from her negligent undertaking claim because “promising is different because it is not synonymous with the performance of the action promised.” The Court reasoned that “contract liability here would not come from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be legally obligated to do something which happens to be removal of material from publication.” The Ninth Circuit continued by recognizing that under a contract theory there must have been a clear and well defined promise and a meeting of the minds between the parties. Thus, Yahoo could have avoided liability by disclaiming any intention to be bound which it failed to do. The Ninth Circuit concluded “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 may be enforceable, it has implicitly agreed to alteration in such baseline.” 

As a result, the Ninth Circuit concluded that plaintiff could state a breach of contract claim under the theory of promissory estoppel and that section 230(c)(1) of the CDA did not bar that cause of action. Therefore, the Ninth Circuit reversed the lower court’s granting of the motion to dismiss on that cause of action.