• Sex, Lies and the Internet: Ninth Circuit Rules That Communication Decency Act Does Not Necessarily Shield Yahoo from Liability for Promising - And Then Failing - To Remove Objectionable User Content
  • June 22, 2009
  • Law Firm: Kilpatrick Stockton LLP - Office
  • In the interest of encouraging a robust exchange of information over the world wide web, Section 230 of the Communications Decency Act (“Section 230”) provides Internet service providers with immunity from civil liability related to allegedly indecent user content accessible through their services. Although this immunity has long been considered essentially absolute, the Ninth Circuit held in Barnes v. Yahoo, Inc., No. 05-36189 (May 7, 2009), that because Yahoo is alleged to have explicitly promised – and then failed – to remove certain offensive content from its website, Section 230 may not necessarily shield it from liability.

    Factual Background

    After Plaintiff Cecilia Barnes broke off a lengthy relationship, her ex-boyfriend created fictitious public profiles for Barnes on a website operated by Yahoo, with nude photographs of Barnes alongside offers to engage in sexual intercourse, and providing the e-mail address, physical address, and telephone number for Barnes at her place of employment. Soon, men whom Barnes did not know began e-mailing, telephoning and visiting her workplace with the expectation of a sexual encounter.

    Over the next several months, Barnes mailed Yahoo (consistent with its policy) four separate statements requesting the profiles be removed. Finally, Barnes received a telephone call from an executive at Yahoo, who is alleged to have 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.” Barnes alleges that she relied on this statement, and took no further action regarding the profiles.

    The profiles remained on Yahoo’s site, however, and two months later Barnes filed suit against the company. The District Court of Oregon dismissed Barnes’ suit, finding Yahoo enjoyed absolute immunity under Section 230(c)(1).

    Section 230(c)(1)

    At issue in this case is Section 230(c)(1) of the Communications Decency Act of 1996:

    (c) Protection for “good samaritan” blocking and screening of offensive material

    (1) Treatment of publisher or speaker

    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.

    Ninth Circuit’s Analysis

    Reversing the district court’s opinion, the Ninth Circuit held that Yahoo, by explicitly promising to remove the profiles at issue, had undertaken conduct distinct from its status as a “publisher” of Internet content, and was thus outside the protections of Section 230(c)(1).

    Practical Implications

    The Court’s ruling does nothing to disturb an Internet service provider’s immunity under Section 230(c)(1) for conduct consistent with its role as purely a “publisher” of Internet content. Even if an ISP endeavors to assist a complainant with the removal of offensive content, it should continue to enjoy immunity against civil actions based on that content, so long as it avoids making any explicit promises to remove it.

    Nonetheless, Internet service providers may wish to review their existing terms of service, to ensure that none of the language therein can be read as promising or guaranteeing a particular response to a complaint.

    The Court’s opinion dealt only with Section 230(c)(1), and did not address Subsection (c)(2) which provides immunity against claims based on, inter alia, “any action voluntarily taken in good faith to restrict access or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable . . .” It is unclear whether this subsection would provide immunity for claims based on a good-faith promise to remove objectionable content.