Metropolitan News-Enterprise


Friday, May 8, 2009


Page 1


Court: No Tort Liability Over Failure to Remove Online Material


By STEVEN M. ELLIS, Staff Writer


An Oregon woman cannot impose tort liability on Internet service provider Yahoo! Inc. for allegedly failing to remove profiles in which her ex-boyfriend assumed her identity and posted explicit material soliciting sex, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Rejecting a ruling that the federal Communications Decency Act immunized the company from tort claims, the court nonetheless held the act precludes tort liability when the duty allegedly breached derives from the defendant’s status or conduct as a “publisher or speaker.”

However, the three-judge panel ruled that Cecilia Barnes—who claimed the profiles led strange men to call, e-mail and visit her at work expecting sex—could bring a claim for breach of contract over Yahoo’s alleged failure to remove the profiles after promising to do so.

‘Indecent Use’

Writing for the court, Judge Diarmuid F. O’Scannlain said the case “stems from a dangerous, cruel, and highly indecent use of the Internet for the apparent purpose of revenge,” but noted that Yahoo “hotly contest[ed]” Barnes’ factual allegations.

Barnes broke off a lengthy relationship with the man in 2004, and claimed that he responded by posting profiles of her on a website run by Yahoo that allows users to post public profiles for other Yahoo members to view.

The profiles contained nude photographs of Barnes and the man, allegedly taken without her knowledge, and solicitation—either express or implied—to engage in sexual intercourse. Barnes also claimed the man conducted discussions in Yahoo’s online “chat rooms” posing as her and directing male correspondents to the fraudulent profiles.

Barnes said she asked Yahoo to remove the profiles, and then repeated the request one month later after receiving no response, but only heard back from the company on the eve of a broadcast of a report on the incident by a local television news program.

Company Reaction

She claimed she was then advised by a “Ms. Osaka” from Yahoo that Osaka would “personally walk [Barnes’] statements over to the division responsible for stopping unauthorized profiles and they would take care of it, but that the company only pulled the profiles two months later after Barnes filed suit.

Barnes alleged causes of action under Oregon law based on Yahoo’s “negligent undertaking” and on her reliance on Osaka’s alleged promise to remove the materials, but U.S. District Judge Ann L. Aiken of the District of Oregon dismissed for failure to state a claim. Aiken reasoned that Sec. 230(c)(1) of the act immunized Yahoo from liability as a matter of law.

As noted by the Ninth Circuit in Carafano v., Inc. (2003) 339 F.3d 1119, the statute bars courts from treating certain Internet service providers as publishers or speakers in tort actions “to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.”

On appeal, Barnes argued the statute did not apply to her causes of action, but O’Scannlain—emphasizing that the statute precluded liability, but did not grant “immunity”—wrote that Barnes “could not escape Sec. 230(c) by labeling as ‘negligent undertaking’ an action that is quintessentially that of a publisher.”

Promissory Estoppel

However the judge said that Barnes’ second claim—based on Yahoo’s alleged failure to fulfill its promise to remove the material—could be “recast” in terms of promissory estoppel, and said that liability under the theory was “different from, and not merely a rephrasing of, liability for negligent undertaking.”

Remanding to determine whether Barnes had a viable contract claim, he explained:

“[Sec.] 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.”

Judges Susan P. Graber and Consuelo M. Callahan joined O’Scannlain in his opinion.

The case is Barnes v. Yahoo! Inc., 05-36189.


Copyright 2009, Metropolitan News Company