Great case from the Ninth Circuit today. And a nice CDA Section 230 win for online publishers. But tempered by the fact that the publisher still has to defend part of the plaintiff's case: a contract-based claim that the publisher promised to remove objectionable material from its Web site -- but failed to do so.
In Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 7, 2009), the court held that Yahoo! was entitled to claim immunity under Section 230 of the Communications Decency Act (47 U.S.C. 230) to a tort claim alleging that Yahoo! negligently failed to remove scandalous and false materials from its Web site after promising the plaintiff it would do so.
The court held that Yahoo! was entitled to immunity on the tort of "negligent undertaking," and in the process rejected the plaintiff's argument that CDA Section 230 is limited to defamation claims only.
To summarize, we hold that section 230(c)(1) bars Barnes’ claim, under Oregon law, for negligent provision of services that Yahoo undertook to provide. The district court properly granted Yahoo’s motion to dismiss that cause of action.
Unfortunately for Yahoo!, one of its employees allegedly promised to remove the offending material -- which was posted by the plaintiff's former boyfriend. The court said that Yahoo! was not necessarily entitled to CDA Section 230 immunity to plaintiff's cause of action for promissory estoppel, a contract-based claim.
The court wrote:
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.
The court held that "insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action." It remanded to the trial court for consideration of whether a valid contract was actually formed by Yahoo!'s actions, and whether Yahoo! might have an affirmation defense to the contract claim under CDA Section 230(c)(2).
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