Keeping a Promissory to Yahoo

The U. S. Court of Appeals for the Ninth Circuit recently fired a broadside at the fortress of invincibility provided to Internet Service Providers (ISPs) by Sec. 230(c) of the Communications Decency Act (CDA) of 1996. In Barnes v. Yahoo (05-36189), decided on May 7, 2009, the appellate court affirmed in part, and reversed in part and remanded, the decision of the U.S. District Court in Oregon involving Yahoo! and Plaintiff Cecilia Barnes, who was the target of a vindictive ex-boyfriend of the type featured in R-rated thrillers regularly churned out by Hollywood.
Ms. Barnes ended her relationship in 2004, prompting her jilted beau to post nude photographs of the Plaintiff (taken without her consent) on the Web site and to fabricate profiles of the Plaintiff on Yahoo! The former boyfriend pretended to be Ms. Barnes in chat rooms, talking up male correspondents, directing them to the graphic photos, and including the phone number and address of the Plaintiff's place of business. In compliance with Yahoo!'s policy, the Plaintiff submitted a photo id of herself and a signed statement denying personal involvement and requesting the removal of the offensive profile and materials. After numerous follow-up attempts proved unsuccessful, Ms. Barnes sued Yahoo! in state court, and the ISP withdrew the profile shortly thereafter. Yahoo! removed the lawsuit to federal court and sought refuge in Sec. 230(c) of the CDA. In relevant part, the provision states: "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." ISPs have benefitted from immunity provided by Section 230 most often in defamation cases. The Ninth Circuit opinion by Judge O'Scannlain afforded Yahoo! protection against the Plaintiff's claim of negligent provision of services/"negligent undertaking" for the ISP's alleged failure to remove the offensive profile in a timely fashion. "Insofar as Baqrnes alleges a breach of contract under the theory of promissory estoppel," Judge O'Scannlain wrote, "subsection 230(c)(1) of the Act does not preclude her cause of action." The appellate court determined that, notwithstanding CDA Sec. 230, Ms. Barnes should have the opportunity to prove that she was harmed by reasonably relying on the promise of Yahoo! to remove the false profile and very real photographs, and its purported failure to follow through on that promise. It remains to be seen whether the Ninth Circuit decision is a fact-specific aberation or a chink in the CDA armor that signals hard times ahead for ISPs nationwide.