Barnes v. Yahoo!, Inc.

565 F.3d 560 (9th Cir. May 7, 2009), later amended by 570 F.3d 1096 (9th Cir. June 22, 2009)

(Amended opinion available at 2009 U.S. App. LEXIS 20053)

In Barnes, fake profiles were created on a website run by Defendant, Yahoo!, Inc., of Plaintiff, Cecilia 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 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.

The court held that promissory estoppel can create an implied waiver of section 230 protection. "Subsection 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." 2009 U.S. App. LEXIS 20053 at *33-34.

Barnes initially had a section of dicta that said 230 was an affirmative defense, but then withdrew that section from the amended opinion. 565 F.3d at 562