So what's the takeaway from the Barnes v. Yahoo, Inc. case?  This is the case decided this month involving the dumped boyfriend who posted nude pictures of his ex on Yahoo and impersonated her in various Yahoo chat rooms suggesting she's ready for action.  He also posted her contact information.  Some people have a hard time moving on.  After a slew of not-so-gentleman callers, Barnes contacted Yahoo in accordance with their policies to request removal of the information.  Barnes asserts she received a phone call from Yahoo's "Director of Communications" telling her that she would "personally walk [Barnes's request] over to the division responsible for stopping unauthorized profiles and they would take care of it."  According to Barnes, it didn't happen.  After a few more months, Barnes sued Yahoo.  Yahoo asserted that it is immune, under Section 230 of the Communications Decency Act, from any liability for its actions, or lack of action, relating to Barnes. 

Barnes sued under two legal theories.  But the court gave credence to only one, promissory estoppel, which basically alleges that Yahoo made a promise (to remove the offensive content) which Barnes relied on to her detriment.  The court did not accept that Section 230 of the CDA means that Yahoo could not liable to Barnes under a promissory estoppel theory.

Section 230 of the CDA has been interpreted to provide broad immunity to operators of interactive computer services (which would include Yahoo) against liability for posting content they don't create.  The Barnes court (the Court of Appeals for the 9th Circuit) looked at the specific language of subsection (c) (1) of Section 230, which is the provision generally cited as the source of the general immunity.  The court noted that the actual language does not mention "immunity" or any synonym.  Instead it provides that an interactive computer service cannot be treated as the "publisher" or "speaker" of any information provided by another.  Accordingly, the court focused its analysis on whether Barnes's theories of liability entailed treating Yahoo as the publisher or speaker of third party content.  It observed that the essence of an estoppel claim is a promise that meets the characteristics of a contract and upon which the promisee relies.  Barnes did not seek to hold Yahoo liable as a publisher or speaker, but as a counter-party to a contract.  Essentially, this validates a distinction between the act of publishing or removing something now, which entails immunity, and the act of agreeing to do something in the future which happens to be the removing content, and which does not entail immunity.  The court goes on to stress that part of the act of contracting, as opposed to publishing, is the making of a clear promise or offer that meets the legal requirements to be considered a binding contract.  Thus, the court stated, a general monitoring policy is not the kind of clear statement that constitutes a contractual obligation and that Yahoo could be absolved from liability by merely disclaiming any intention to be bound.

I thought of this case in light of the current activities involving Craigslist.  That company recently announced on its blog that it will begin to review manually each posting in its new "adult services" category for compliance with its policies.  In light of events affecting Craigslist, other sites may also decide affirmatively to state that they will screen content for various reasons.  Looking at the Barnes case, site operators may want to be cautious about how they describe their screening activity.  The case suggests that making statements that rise to the level of contractual obligations may result in the loss of Section 230 immunity, if the site acts in breach of the statement and a claim is brought for the breach.  Sites may want to couch their screening policy as a reservation of the right to screen, without any obligation to screen.  According to the Barnes court, it's not the act of screening, or not, that is the problem; that would seem to be what publishers do.  It's the act of making a contractual promise relating to screening and then breaching that promise that could give rise to the loss of Section 230 immunity.  Something to think about when revisiting terms of use.