Sex, Lies… And a Dumb Mistake Your Blog Website Can’t Afford

By Chip Cooper, Esq

Does your website incorporate a blog or forum – where users may post text or files? If so, are you liable if your users post defamatory materials about someone else?

In 1996, Section 230 of the Communications Decency Act (Section 230) came to the rescue of “interactive computer services” by overruling prior case law that would hold websites liable. But Section 230 is not absolute. Interactive websites may still be liable as the May, 2009, Ninth Circuit case of Barnes v. Yahoo, Inc. illustrates.

Sex And Lies

The case of Barnes v. Yahoo involved salacious facts centering on the aftermath of a break-up between plaintiff Cecilia Barnes and her boyfriend.

After the break-up, Barnes’ ex-boyfriend created fictitious profiles for her on a website operated by Yahoo. Included were nude photos, plus offers for sex. To make matters worse, he also provided her email address, physical address, and work phone number. All this resulted in Barnes receiving emails and calls with the expectation of a sexual liaison.

The Dumb Mistake

After Barnes’ four separate emails to Yahoo demanding the removal of the objectionable materials did not result in their removal, Barnes received a call from an executive at Yahoo. Barnes alleged that the executive promised to “take care of it”. Barnes further alleged that she relied on this promise and took no further action to remove the objectionable materials.

You guessed it – Yahoo failed to remove the objectionable materials, and after two months, Barnes filed a lawsuit against Yahoo.

Yahoo claimed complete immunity under Section 230(c)(1), and the trial court agreed by dismissing Barnes’ suit.

The Ninth Circuit Appeal

Barnes appealed to the Ninth Circuit Court of Appeals, arguing that Yahoo’s failure to make good on its promise took Yahoo out of the protection of Section 230.

The essence of Section 230 is that it removed an “interactive computer service” such as the Yahoo website from “publisher” liability for materials posted by a user. “Interactive computer services” include websites that offer interactive services such as blogs, forums, and listservs. As a result of Section 230, website publishers are treated differently from publishers in print, TV, and radio.

The Ninth Circuit agreed that Yahoo’s failure to make good on its promise took Yahoo out of the protection of Section 230(c)(1). Essentially, the promise was held to be an act separate and distinct from Yahoo’s role as an online publisher, and therefore, this departure from the role of publisher would not be immunized. In short, this decision illustrates that the Section 230 protections for interactive websites is not bullet-proof.

Conclusion

The ruling in Barnes v. Yahoo does not diminish the immunity provided to interactive websites by Section 230, provided that the website does not venture out of its role as publisher. The lesson from this case is that explicit promises to remove objectionable materials may well lead to liability for failure to make good on the promise.

One additional take-away is that all interactive websites should review their Terms of Use to insure that there is no provision that could be construed as a promise or guarantee for a specific response to a complaint by a user.

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Disclaimer: This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.