Barnes v. Yahoo: No Communications Decency Act Protection for Internet Service Provider Who Fails to Keep Its Promise to Take Down an Offending Post
A May 7, 2009 ruling by the Ninth Circuit means that digital media companies will have to be careful about what they say when dealing with a complaint about an offending post. In another of a series of recent cases that have begun to find limits in the "immunity" provided by the Communications Decency Act, on May 7, 2009, a Ninth Circuit three-judge panel held that the CDA provides no protection to an internet service provider who promises, but then fails, to remove content provided by a third party.
Barnes v. Yahoo!, Inc. __ F.3d___, 2009 WL 1232367 (9th Cir. 2009) concerned an alleged fact situation in which after the breakup of their relations, the plaintiff's boyfriend began to post profiles regarding the plaintiff (Barnes) on Yahoo websites and in Yahoo chatrooms. These posts contained nude photos of the plaintiff, a solicitation to engage in sexual intercourse and provided the address and phone number at her place of employment. Before long, Barnes was peppered with emails, phone calls and personal visits, "all in expectation of sex." 2009 WL 1232367 at *1. A virtual repeat of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003).
Barnes sent Yahoo several formal requests for the takedown of the posts. Nothing happened. Then, the day before a local news outlet was preparing to broadcast a report on the incident, Yahoo's director of communications called Barnes, asked her to fax directly the previous statements she had mailed and 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." 2009 WL 1232367 at *1.
Barnes claims that she relied on this statement and took no further action on the profiles. However, apparently still failing to get any action, two months later Barnes filed this suit against Yahoo. Shortly thereafter, the profiles disappeared. Id.
Barnes sued Yahoo under two causes of action: (i) negligent undertaking, and (ii) promissory estoppel. "Negligent undertaking" is based on the principal that if you decide to help someone else out, as a Good Samaritan, to protect their person or things, you are subject to liability if you act negligently. "Promissory estoppel" is based on the idea that if you make a promise, with the intent that a third party rely on it, you can be held liable if you fail to perform that promise.
In response to Barnes' complaint, Yahoo argued that it was immune from liability under the Communications Decency Act (47 U.S.C. ยง 230(c)). The Ninth Circuit agreed as to the negligent undertaking claim, but not as to promissory estoppel. The difference for the Court was the nature of the specific act on which Yahoo was being sued under the two legal theories -- Yahoo's failure to take down the posts v. Yahoo's failure to keep its promise to take down the posts.
Ninth Circuit precedent holds that the Communications Decency Act shields an internet service provider when it is exercising the traditional duties of a publisher, including "reviewing, editing, and deciding whether to publish or withdraw from publication third party content." See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1171 (9th Cir. 2008). Here, the Ninth Circuit characterized Yahoo's actions in deciding and acting on its decision to take down the offending posts as within traditional publisher's duties. As such, under the Communications Decency Act, it could not be held liable for its alleged delay in removing the posts. 2009 WL 1232367 at *8.
On the other hand, the Ninth Circuit found that "[p]romising is different because it is not synonymous with the performance of the action performed." According to the Court, "[c]ontract law treats the outwardly manifested intention to create an expectation on the part of another as a legally significant event" and "[t]hat event creates a legal duty distinct from the conduct at hand . . . " Id. at *10. While the Communications Decency Act provides protection when an internet service provider negligently performs its acts as a publisher, it does not provide protection when the service provider fails to keep its promises to perform those acts.
What are the take-aways from this ruling?
For potential plaintiffs: This ruling adds to the growing list of CDA "work-arounds." If you are concerned that the Communications Decency Act might block your suit against an ISP concerning a third-party post, make sure you research all communications with the website to see if it made any promises that it didn't keep.
For internet service providers: It's okay to set up a system to take complaints or to have a monitoring policy. In fact, the Communications Decency Act specifically provides protection where an ISP does engage in such activities, but makes mistakes. Just avoid making promises to remove offensive posts. It is also wise to include a disclaimer of an intent to be bound in any monitoring policy statements. As the Court noted: ". . . a general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it only need disclaim any intention to be bound." Id.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
