9th Circuit Panel: Section 230 Immunity Applies to Negligence Claim; Application to Promissory Estoppel Claim Rejected

On May 7, 2009, the U.S. Court of Appeals for the 9th Circuit reaffirmed in Barnes v. Yahoo!, Inc., 2009 WL 1232367 (9th Cir. May 7, 2009) the broad scope of immunity afforded by Section 230 of the Communications Decency Act in rejecting a negligent gratuitous undertaking claim arising from the plaintiff’s assertion that Yahoo! had negligently failed to remove a profile that was falsely attributed to her.

In reviewing a district court decision that granted Yahoo!’s motion to dismiss, the 9th Circuit emphasized the applicability of the statute to a wide variety of claims that may arise from the treatment of a Web site operator as the “publisher or speaker” of any speech provided by third parties, regardless of how the claim is labeled.

At the same time, however, the Court held that the plaintiff’s promissory estoppel claim could proceed, on the grounds that it arose from contract principles that were not within the scope of claims protected under Section 230. The Court made clear that its decision had to assume the truth of the facts alleged, since the appeal was from an order granting a motion to dismiss, and noted that Yahoo! “hotly contested” the allegations.

Nonetheless, the distinction the Court drew between two claims that arise from an Internet service provider’s alleged failure to remove third-party material from a Web site is likely to cause confusion in the district courts and encourage game-playing by prospective plaintiffs.

District court dismissal: all claims barred under Section 230

According to the facts set forth in the 9th Circuit’s decision, the plaintiff, Cecilia Barnes, claims that an ex-boyfriend posted fake profiles of her on a Yahoo!-operated Web site that included nude photographs of Barnes and her contact information, among other things.

Barnes claimed she sent three requests within two months asking Yahoo! to remove the profile, but received a response only when a local news station prepared to run her story. A Yahoo! representative then allegedly told her to fax the statements she had previously mailed to Yahoo! and that Yahoo! would remove the profiles. When two more months passed without any change, Barnes filed the instant lawsuit.

The district court dismissed the suit in its entirety, finding that any claim based on the posting of content on Yahoo!’s site was barred under Section 230 of the Communications Decency Act.

The appeal: two claims, two results

On appeal, the 9th Circuit panel described the complaint as “unclear,” but found that it purported to allege two claims: one for “negligent undertaking,” based on the allegation that Yahoo! had undertaken to remove the profile, but had not done so; the other for “promissory estoppel,” based on the claim that Yahoo!’s representative had promised to remove the profile but had not done so. Although the two claims appear to be virtually indistinguishable, the panel reached a different result as to each claim.

At the outset, the panel noted that the statute recognized Congress’s appreciation for the Internet as a “forum for a true diversity of … myriad avenues for intellectual activity,” which “ha[s] flourished … with a minimum of government regulation.” 47 U.S.C. § 230(a)(3)-(4). It also noted the policy behind Section 230 to “promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.”

The Court then focused on the meaning of Section 230(C)(1)’s provision that bars claims that “treat[]” the Internet service provider as a “publisher or speaker of any information provided by another information content provider.”

In rejecting the plaintiff’s negligent undertaking claim, the Court explained in detail that allowing such a claim would unlawfully treat Yahoo! as a publisher. The Court noted that Section 230 extends broadly beyond defamation claims to include any claim that treats a Web site operator as a “publisher or speaker” of third-party content, regardless of the type of claim asserted. 

As the Court explained, “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.” Because “removing content is something publishers do,” the Court concluded that allowing a claim that penalized Yahoo! for failing to remove content would treat it as a “publisher,” in contravention of Section 230’s express prohibition. 

Nonetheless, the Court curiously found that Barnes’s claim for promissory estoppel survived Section 230. As the Court reasoned, in a promissory estoppel claim, the alleged duty arises from a promise and sounds in contract; consequently, promissory estoppel claims, like contract claims, do not require that the Internet service provider be treated as a “publisher” of the offending content.

The Court explained: “Contract liability here 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.”

Conclusion

On its face, this decision is difficult to reconcile with the Court’s treatment of the negligent undertaking claim, since both arise from the allegation that Yahoo! failed to remove content—either that it had gratuitously offered to remove, or that it had allegedly “promised” to remove.

The Court did not evaluate the plaintiff’s alleged “reliance” on Yahoo!’s supposed promise, nor did it discuss what kinds of damages could result from the failure to act on the “promise” that are distinct from the kinds of damages that are based on publication, which Section 230 would bar.

These and other issues may well result in an ultimate victory for Yahoo!, once a factual record is developed.

As a result of the Barnes decision, however, Web site operators may be more resistant to requests that they remove defamatory or otherwise objectionable content or take any other steps that could lead to an allegation that further action had been “promised” to a prospective plaintiff.

It also opens the door to game playing by potential plaintiffs, who may seek to avoid Section 230’s immunity by claiming that there had been a “promise” to remove the third-party content for which the Web site would otherwise be immune.

Thus, despite its broad language touting the protections offered by Section 230, the Barnes decision is likely to cause more litigation as the district courts and litigants attempt to sort through its aftermath.

Ms. Sager is a partner in the Los Angeles office of Davis Wright Tremaine LLP.  Mr. Johnson is a partner and Ms. Doran is an associate in the firm's Seattle office.  Mr. Burke is a partner in the firm’s San Francisco office.