Ninth Circuit: Section 230 bars Negligent Undertaking action, Breach of Contract claim survives

Last summer the Ninth Circuit ruled in Barnes v. Yahoo, an appeal relating to whether Section 230 immunized negligent undertaking and breach of contract claims. Here are links to the amended opinion, and a one-word modification to the amended opinion.

The alleged facts are straight-forward and, as is often the case in these actions, disturbing. Without her authorization, plaintiff’s former boyfriend allegedly posted public profiles of her on Yahoo that included nude photos of plaintiff (taken without her knowledge), a solicitation for sex, and plaintiff’s workplace contact information. The ex-boyfriend also allegedly posed as plaintiff in Yahoo chat rooms, directing others to the aforementioned profiles. Strangers began contacting plaintiff at her office, and in some cases showing up in person, seeking sex.

Plaintiff claims that on several occasions she asked Yahoo to remove the materials, but got no response. Eventually Yahoo told plaintiff that they’d take care of it, but still nothing happened. Plaintiff then filed suit in an Oregon state court. Shortly thereafter the offending materials vanished from the site.

Yahoo removed the case to federal court, where plaintiff’s complaint was dismissed on Section 230 grounds. On appeal, the Ninth Circuit considered whether the statute indeed immunizes defendant from what appear to be claims of negligent undertaking and breach of contract (promissory estoppel).

The panel’s negligent undertaking analysis focused on Section 230(c)(1)’s language and history. “Looking at the text, it appears clear that neither this subsection nor any other declares a general immunity from liability deriving from third-party content . . . [s]ubsection (c)(1) does not mention ‘immunity’ or any synonym . . . [it] precludes liability only by means of a definition.” The court zeroed in on the meaning of publisher or speaker, and instances when a plaintiff’s theory of liability indeed treats a defendant as a publisher or speaker of third-party content. Noting that the statutory language does not “limit its application to defamation cases,” the court concluded a plaintiff cannot “escape section 230(c) by labeling as a ‘negligent undertaking’ an action [here the removal of indecent profiles] that is quintessentially that of a publisher.”

However, the panel viewed plaintiff’s promissory estoppel claim as distinct from her negligent undertaking claim, noting that it “does not seek to hold Yahoo liable as a publisher or speaker of third-party content, but rather as the counter-party to a contract, as a promisor who has breached . . .. Contract liability would come not from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be legally obligated to do something, which happens to be removal of material from publication.” The court held that to the extent plaintiff alleges a breach of contact claim under the theory of promissory estoppel, 230(c)(1) does not preclude her cause of action.

Operate a website? Don’t be alarmed, says the court:

[A] general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.

I don’t know exactly what the district court had before it, or what the record was before the panel here. However, while I don’t necessarily disagree with any of its reasoning, I’m wondering whether it would have been better had the panel instead ruled on the adequacy of plaintiff’s allegations, with an eye toward dismissing insufficiently pleaded claims. Why make law if you don’t have to?


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