Section 230 of the United States Communications Decency Act (47 USC 230) gives “providers of interactive computer services” (like ISPs, internet forums and social networking sites) immunity from certain types of claims when the providers publish or republish the works of other people. It was enacted to overrule a 1995 decision that held an ISP liable as a publisher. The section’s purpose is to allow service providers to perform certain editorial functions (like removing offensive content) without thereby opening themselves to liability as publishers of the rest of the content. A recent decision by the Ninth Circuit (Barnes v. Yahoo! [PDF]) discusses the application of this provision and suggests a possible way for plaintiffs to avoid it.
In Barnes v. Yahoo!, the plaintiff’s ex-boyfriend created a fake profile on Yahoo! containing photos of the plaintiff and her contact information. She began receiving phone calls and visits at work from strangers. The plaintiff attempted a few times to have the profiles removed according to Yahoo!’s removal policy but Yahoo! did not follow through. Just prior to the airing of a news story on the plaintiff’s circumstances, a representative phoned her and promised to remove the profiles. The representative did not follow through and after two months the plaintiff sued. In the appeal decided May 9, the Ninth Circuit held that Section 230 applies whenever “the cause of action inherently requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by another”. Thus Yahoo! is protected from the claim of negligent undertaking because it undertook to perform the job of a publisher. However, the court also suggested that Yahoo! might be liable under the doctrine of promissory estoppel. If the promise to remove the content is viewed as akin to a contract, then the cause arises not from Yahoo!’s role as a publisher but its role as a party to a contract.
This decision has attracted attention in blogs and in the media. There were two posts I found particularly illuminating. A post by Daniel Solove discusses the possible downsides of this ruling. Solove worries that by extending liability for promises it might penalize sites that have explicit removal policies. Those sites that merely rest on their Section 230 immunity and do nothing will not be liable, but those that attempt to help some people might be liable if they don’t help everyone. In an entertaining article, Eric Goldman predicts that promissory estoppel will become a regular companion to suits against service providers. On the one hand, he writes, promissory estoppel is an uphill battle for the plaintiff and it may not lead to much additional liability. On the other, promissory estoppel is complicated and will increase the cost of a Section 230 defense for defendants.
It will be interesting to see where this goes in the future. Will this promissory estoppel claim be successful? Based on my understanding of the doctrine, I don’t believe so. Promissory estoppel requires a “substantial change in position” in reliance on the promise (Barnes v. Yahoo! at para. 12). There was a promise, but did the plaintiff change her position in reliance on it? She did not, for example, forgo another opportunity to have the profile removed while she was waiting for Yahoo! to act. Barnes would have to show that if the Yahoo! representative had never called she would be better off. The court has remanded the case for further proceedings so we may find out in the future.