Last Thursday, the Ninth Circuit Court of Appeals ruled that Oregon resident Cecilia Barnes can sue Yahoo! Inc. for failing to make good on a promise to remove a fake, lewd profile posted by her ex-boyfriend.
The court’s ruling doesn’t change the fact that publishers of web content aren’t necessarily liable for what their users post, but they did find that Yahoo! may be liable for a broken promise in this specific case.
Barnes first filed a lawsuit in March, 2005 after making several attempts to get Yahoo! to remove profiles created by her ex-boyfriend, which according to the decision written by 9th Circuit Judge Diarmuid F. O’Scannlain, “contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation… to engage in sexual intercourse.” The fake profiles contained accurate contact information for Barnes at her workplace and at home. Additionally, Barnes’ claim alleges that her boyfriend pretended to be her in Yahoo! chat rooms and directed men to the fake profiles. As a result of her ex-boyfriend’s behavior in O’Scannlain’s words, “men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.”
The Ninth Circuit decision details how, once she became aware of the profiles, Barnes claims to have “in accordance with Yahoo policy… mailed Yahoo a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal.”
After a month went by with no response from Yahoo!, Barnes says she wrote them two more times to have the profiles removed. Barnes says Yahoo!’s director of communications Mary Osako finally promised that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it” the day before a local news outlet was preparing do a piece on her story. When nearly two more months went by without any action from Yahoo!, Barnes filed suit in an Oregon court. WebNewser called Osako, who left Yahoo! to become Ask.com’s senior vice president of corporate communications in 2007, but as of this writing, she has not responded to our request for a comment on this story.
Barnes’ case was initially dismissed under Section 230 of the Communications Decency Act, which says that “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.” In other words, the CDA protects companies from being liable for content posted by individual users to their sites.
The 9th Circuit decision doesn’t remove this protection for publishers. Rather, the Court found that, based on Oregon state law, once Yahoo! promised to remove the profiles, their failure to do so represented a breach of contract. In many other states, a similar broken promise might not be treated as a breach of contract without a more explicit agreement between the parties involved.
Barnes’ case has been remanded back to the Oregon courts, so Yahoo! still has the opportunity to contest the claim that they promised Barnes the profiles would be removed. O’Scannlain says the CDA “creates a baseline rule” that there is “no liability for publishing or speaking the content of other information service providers,” but that “insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline.” In response to the ruling, Yahoo! released a statement saying that they “look forward to swift resolution [of the breach of contract claim] in the district court.”
– HUNTER WALKER