Barnes v. Yahoo!, Inc.

From Internet Law Treatise

2009 WL 1232367 (9th Cir. May 7, 2009)

In Barnes, fake profiles were created on a website run by Defendant, Yahoo!, Inc., of Plaintiff, Cecillia Barnes, without her authorization by a former boyfriend. The profiles contained nude photos of Plaintiff taken without her knowledge and some kind of open solicitation to engage in sexual intercourse. Plaintiff ‘s repeated requests for Defendant to remove the profiles went unanswered and the advances from undesired men continued. One day before a local news program was set to broadcast Plaintiff’s story, Plaintiff claims that Defendant contacted her with a promise, on which she relied, to stop the unauthorized profiles. When Defendant did not uphold its promise, Plaintiff filed suit, alleging negligence and a cause of action under section 90 of the Restatement (Second) of Contracts (1981).

The Ninth Circuit Court of Appeals gave an expansive reading of Section 230 in which the court notes that promissory estoppel, can create an implied waiver of the baseline rule for Subsection 230(c)(1): “no liability for publishing or speaking the content of other information service providers.” Id at *11.

The Court of Appeals held that Defendant was immune from Plaintiff's negligent undertaking claim under the Communications Decency Act, but that Defendant did not have immunity under the Communications Decency Act from Plaintiff's promissory estoppel claim.

Barnes v. Yahoo initially had a section of dicta that said 230 was an affirmative defense, but then withdrew that statement upon a motion for a rehearing. (cite to 1st and 2nd opinion).