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Media eAlert
June 12, 2009



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Companies Hosting Third-Party Content Beware:
Promises Can Get You in Trouble

By:  Paul Watler and Jeremy Brown

Edging close to imposing Good Samaritan liability for voluntarily policing web content, the Ninth Circuit recently illuminated a new path for plaintiffs around the federal statutory protection given to Internet service providers.

In Barnes v. Yahoo, 565 F.3d 560 (9th Cir. 2009), the Court allowed a plaintiff to proceed on a promissory estoppel theory against Yahoo for allegedly failing to fulfill its promise to take down an objectionable web posting. The Ninth Circuit held that section 230(c) of the Communications Decency Act did not bar the claim.

Section 230(c) prevents, among other things, an internet service provider or user from being treated as "the publisher or speaker of any information" provided by a third party. See 47 U.S.C. § 230(c)(1). Although this section most obviously applies to defamation claims based on posted third-party content, courts have extended this protection to apply to other causes of action that seek to treat an internet service provider or user as the "publisher or speaker."

In Barnes, the plaintiff's break-up with her long-standing boyfriend apparently caused some hard feelings. According to the opinion, her ex created unauthorized user profiles on the Yahoo website, which contained nude photographs of Barnes and her ex-boyfriend, an open solicitation to engage in sexual intercourse, and Barnes's address and telephone number. Soon after posting the profile, unknown men began "peppering her office with email, phone calls, and personal visits all in the expectation of sex."

Barnes contacted Yahoo several times requesting that it remove the profiles and Yahoo ultimately said "they would take care of it." Two months later, the profiles had not been removed, so Barnes filed suit alleging state law claims for "negligent undertaking" and "promissory estoppel."

Yahoo filed a FRCP 12(b)(6) motion to dismiss arguing that section 230(c) protected it from liability on both claims. For the "negligent undertaking" claim, the Barnes court found that section 230(c) did protect Yahoo because the claim sought to hold Yahoo liable for publishing conduct, namely, the decision to remove content from its website.

The promissory estoppel claim was different. Promissory estoppel applies where a party makes a promise that another party forseeably relies upon and that reliance causes a substantial change in position by the person relying on the promise. In this context, the liability "springs from a contract—an enforceable promise—not from any non-contractual conduct or capacity of the defendant." Id. at 571. Thus, "[c]ontract 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." Id. at 572. So, because liability did not stem from publishing conduct, but rather an alleged promise independent of this conduct, section 230(c) provided Yahoo with no protection. Id. at 573. Thus, the court denied Yahoo's motion to dismiss on this claim and remanded the case for further proceedings in the trial court.

What This Means for Companies Hosting Third-Party Content

Barnes affirms section 230(c)'s protection against claims founded on Internet publishing conduct where that conduct relates to third-party content. Barnes is a reminder, however, that not everything relating to the posting of third-party content is immunized from liability. In particular, an independent promise made by a company hosting third-party content can give rise to liability for which section 230(c) provides no defense. Companies hosting third-party content should, therefore, be very cautious in their communications that relate to third-party content. Ironically, a voluntary action to address a consumer complaint over objectionable material may give rise to liability after Barnes, even though the opinion shows a service provider would face no exposure by simply undertaking no action at all.

Well-meaning communications that may carry unintended consequences after Barnes come in many forms. The terms of use and privacy policies, marketing materials, communications on the website, or direct communications with website users can all be mediums in which a promise could be communicated. Thus, web companies should undertake a review of their terms of use and privacy policies to ensure that nothing in those policies can be construed as a promise relating to the removal or posting of third-party content. Companies should also consider instructing appropriate personnel about what they should and should not say in their communications with website users.

The Barnes opinion is a reminder that the hosting of third-party content is fraught with risk and potential liability notwithstanding the facial sweep of section 230. These risks can be effectively managed with a careful eye toward navigating this legal minefield.

If you have any questions regarding this e-Alert, please contact Paul Watler at 214.953.6069 or or Jeremy Brown at 214.953.5960 or

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