Barnes v. Yahoo!

Factual Background
At the close of 2004, Cecilia Barnes ended a relationship with her boyfriend. He responded by posting profiles of Barnes on a website run by Yahoo!, which included nude photographs and open invitations to engage in sexual conduct. He also engaged in chat room discussions posing as Barnes and directing men to the fraudulent profiles, which gave Barnes’ real address and phone number. Soon, Barnes was inundated with telephone calls and emails from men expected her to carry out her ex-boyfriend’s promises.

In accordance with Yahoo! policy, Barnes emailed Yahoo! a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. Barnes made another request a month later and two more the following month. A local news program was preparing to air a report on the incident when Barnes received a call from the Director of Communications at Yahoo!, who assured Barnes that she would handle the situation personally, an assurance that Barnes claims she relied upon and took no further action regarding the profiles.

Trial Court Proceedings
Barnes’ complaint alleged tortious conduct on the part of Yahoo! for the negligent provision or non-provision of services as well as a claim for promissory estoppel. Yahoo removed the matter to Federal Court and was granted a motion for dismissal based on immunity under the Communications Decency Act section 230(c)(1).

Appellate Court Proceedings
Barnes appealed claiming that section 230 did not apply and that even if it did, Yahoo was not covered by such immunity.

In determining whether Yahoo! could be held liable as a publisher for the statements made by Barnes’ ex-boyfriend, the Court of Appeals held that:


 * A provider of information services might get sued for violating anti-discrimination laws, see, e.g., [Fair Housing Council of San Fernando v. Roommates], 521 F.3d 1157; for 	fraud, negligent misrepresentation, and ordinary negligence, see, e.g., Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008), cert. denied, 129 S. Ct. 600; for false light, see, e.g., Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002); or even for negligent publication of advertisements that cause harm to third parties, see Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992). Thus, what matters is not the name of the cause of action—defamation versus negligence versus intentional infliction of emotional distress &mdash; what matters is whether the cause of action inherently requires the court to treat the defendant as the “publisher or speaker” of content provided by another. To put it another way, courts must ask whether the duty that the plaintiff alleges the 	defendant violated derives from the defendant’s status or conduct as a “publisher or speaker.” If it does, section 230(c)(1) precludes liability.

Publication involves more than mere printing, often involving reviewing, editing, and making decisions regarding whether to publish or withdraw third-party content. Under Barnes’s claim for negligent provision of services the alleged duty that Yahoo! violated stemmed from an undertaking to remove third party content, a clear act of publication. The Court of Appeals therefore held that immunity under the CDA applied to Yahoo!’s actions.

With respect to Barnes’ claim for promissory estoppel, however, the court held that promising to undertake an act (in this case an act of publication through removal of third-party content) is not the same as performance of the action promised. Under this distinction, Yahoo!’s liability for promissory estoppel is based on intent to induce reliance rather than an action covered by CDA immunity therefore Barnes’ was allowed to proceed with this claim. If Yahoo! had simply continued to ignore Barnes’ requests to remove the profile it would likely have been immune from liability, however, promising to do something about her ex-boyfriend’s conduct created a duty to follow through with that promise.