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. § 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.