Yahoo Wins Online Harassment Case Under 47 USC 230

By Eric Goldman

Barnes v. Yahoo, 2005 WL 3005602 (D. Or. Nov. 8, 2005)

Barnes claimed that her ex-boyfriend harassed her by creating Yahoo user profiles containing nude photos of her plus her contact info. Barnes also claimed that her ex impersonated her in chat rooms, chatting up men who then chased her down at work. Barnes complained to Yahoo about these profiles repeatedly with no results; only after the dispute was picked up by the press did Yahoo give her some attention, at which point she alleges that a Yahoo employee promised to fix the problem.

I assume that Barnes has plenty of recourse (both civilly and criminally) against her ex, but this lawsuit seeks to hold Yahoo responsible for providing tools to create and host the profiles. On its face, this lawsuit is squarely covered by 47 USC 230.

Recognizing this, Barnes analogizes this situation to the rescue cases–Yahoo didn’t have any initial duty to intervene, but once they promised to intervene, they undertook an affirmative duty to do so non-negligently. This is a novel argument to avoid the fate of the many other failed attempts to plead-around 47 USC 230 based on employee promises to correct the problem. In prior cases, plaintiffs have used those promises to claim negligence, breach of contract and promissory estoppel–all to no avail.

Unfortunately for Barnes, her basic situation is just like Zeran’s–someone posted bogus info on a website to harass a target and the service provider made unfulfilled promises to remediate the online postings. The plaintiff in Zeran lost on these facts, and Barnes can’t distinguish this case from Zeran, so her plead-around doesn’t advance the case one bit. Like so many other 230 cases, the lawsuit is dismissed on a 12(b)(6) motion to dismiss–no jury, no discovery, case over. The only thing surprising about this case (or its result) is that plaintiffs continue to bring these meritless cases that have no chance under 47 USC 230.