Ninth Circuit Mucks Up 47 USC 230 Jurisprudence….AGAIN!?–Barnes v. Yahoo

By Eric Goldman

Barnes v. Yahoo!, Inc., 2009 WL 1232367 (9th Cir. May 7, 2009). My 2005 blog post on the lower court ruling.

Reading Barnes v. Yahoo, I had an overpowering sense of deja vu. Almost precisely 2 years ago, a 3 judge panel wreaked havoc on 47 USC 230 jurisprudence in the initial Ninth Circuit Fair Housing Council v. ruling via a set of terribly drafted opinions that sent shock waves through the Internet industry. That mess was so bad that the Ninth Circuit needed to take the case en banc to clean up the mess. The en banc ruling didn’t change the substantive result– still lost–but the en banc majority opinion was much cleaner and had less pernicious superfluous language. As a result, the lower courts have so far cabined its effects on 230’s strong immunization; out of a half-dozen cases citing the opinion, only the StubHub case has cited it in favor of the plaintiff.

In light of the Ninth Circuit’s troubled history with 230, it seemed reasonable to assume that Ninth Circuit judges would draft 47 USC 230 opinions with extra care and precision. No such luck. Instead, this opinion in Barnes v. Yahoo is filled with gratuitous and dangerous dicta, sloppy reasoning and sloppy language–just like Kozinski’s first opinion in the case. Reading it, I thought, “oh no, not again.” What is it about 47 USC 230 cases that causes otherwise talented Ninth Circuit judges to lose it?

To be clear (and I know some of you will give me grief for saying this), I think the court’s two main substantive conclusions are correct. Stripping away all of the opinion’s unfortunate excess, the court says:

1) 47 USC 230 preempts any claims under negligence law for failing to remove third party tortious content, even if the website promises to do so. The court calls this “negligent undertaking;” I might have called it “negligent takedown.”

2) 47 USC 230 does not preempt a claim for promissory estoppel that a third party might have against a website that promises to take down third party tortious content and fails to do so. To me, this is just another way of saying that websites can be liable for the words they choose (1st party content) even if those words relate to user content (third party content).

Unfortunately, Judge O’Scannlain, seemingly intoxicated by a 47 USC 230 case, goes so much further in the opinion than these two conclusions, and without any reason to do so except apparently a desire to hork 47 USC 230 jurisprudence. Among the court’s missteps along the way include:

3) establishing as Ninth Circuit law that 47 USC 230 cannot support a 12(b)(6) motion to dismiss–even though neither party asked the court to opine on that procedural issue and, I believe, did not adequately brief or argue that point for the court

4) saying, for absolutely no reason whatsoever, that 47 USC 230 only preempts state law claims, not federal claims. WTF? Everyone knows this is wrong wrong WRONG, but the language is right there in black-and-white, begging for plaintiffs to cut-and-paste it into their briefs.

Before I outline some implications of this ruling, let me drill down a little on each of these 4 points.


This case is one of many involving fake dating profiles (other cases in this category include Carafano, Landry-Bell, Friendfinder, Anthony v. Yahoo–I’m sure I’m forgetting some). The situation typically goes as follows: sexual partners break up, aggrieved partner A sets up a fake dating profile saying that target partner B is looking for sex, and B then is harangued by strangers seeking sex. I’m amazed at how often this story occurs (or a variation, like a fake Craigslist ad designed to target an individual for unwanted inquiries) but it’s hardly new; the Zeran prank didn’t involve sex but did involve publication of false information online to deliberately make a target’s life miserable. I’m also amazed at how often people fall for these fake profiles and treat them as legitimate even though the content is not authenticated. I believe a number of laws potentially criminalize the posting of fake profiles, so in theory there should be ample recourse to punish the miscreants who cause such mischief. However, enforcement may be spotty, especially when the prank is effectively anonymous.

The Ninth Circuit’s opinion doesn’t really revolve around the fake dating profile. Instead, the essential facts are that Barnes, the target of the prank, contacted Yahoo to get the fake dating profile removed but instead got the brushoff. The press learned of Barnes’ plight and scheduled a broadcast on the incident. Yahoo’s PR flack then told Barnes that she would fix Barnes’ problem, presumably so that the broadcasted story would be more flattering to Yahoo. However, nothing happened to the fake profile for 2 more months, at which point Barnes sued Yahoo. Only then did Yahoo finally remove the profile, but the lawsuit failed in court with a quick 230 dismissal.

Negligent Undertaking

Barnes’ “negligent undertaking” claim is, in all material respects, identical to the legal issues in the 1997 Fourth Circuit Zeran case. In that case, the target of the fake content (offensive ads) contacted AOL, was told AOL would remove them, and ultimately sued AOL for negligence (not defamation) for failing to remove the content. A court less determined to muck up 47 USC 230 jurisprudence could have simply cited Zeran without lengthy exposition.

This court ultimately reaches the same conclusion as Zeran, and along the way the panel addresses and explicitly rejects some anti-230 arguments that still appear, including:

* 230 only applies to defamation claims. The court rejects the argument, saying “what matters is not the name of the cause of action—defamation versus negligence versus intentional infliction of emotional distress—what matters is whether the cause of action inherently requires the court to treat the defendant as the “publisher or speaker” of content provided by another.”

* 230 no longer applies after the website has received notice of a problem. The court says that 230 applies to both affirmative decisions to publish as well as affirmative or inadvertent decisions not to take down content. As the court says, “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.”

* 47 USC 230 protects only content publishers, not distributors. The court does a nice job destroying this argument, but I think the strongest argument it makes is that the statute covers lots of causes of action, and it wouldn’t make sense to import a defamation-specific distinction between “publishers” and “distributors” into a statute of general applicability.

* the statute is inconsistent with its legislative history. The court also does a nice job with this argument, concluding that we can safely ignore any conflicting legislative history of the statute.

* 230 encourages websites not to undertake any site policing, and Congress could not have meant that. The court says that (c)(2) was designed to protect active policers, which means that it’s rational for Congress to say that (c)(1) protects the do-nothing folks.

Promissory Estoppel

Having rejected that Yahoo had any duty under default tort law to remediate the third party tortious content, the court then considered if Yahoo nevertheless voluntarily created the duty. For this, the court charitably construes the plaintiff’s garbled pleadings as an allegation of promissory estoppel. The court says that the complaint properly alleged promissory estoppel when Yahoo’s PR flack promised to intervene as a way of suppressing a forthcoming story.

Although the court didn’t address the existing precedent on this point, this case appears to conflict with the 2001 Schneider v. ruling, which said that 230 preempted a claim for breach of contract based on a promise to take down content. I assume that ruling is now shaky precedent. [last sentence edited to correct error]

This conclusion indirectly addresses the festering issue about how 230 deals with marketing representations made by a website that are rendered untrue by third party content or actions, an issue I first raised with the Mazur case a year ago. Since then, the issue has been coming up regularly. Most noteworthy is the 6th Circuit’s December ruling in Doe v. SexSearch, which waived off the lower court’s ruling that a website could be protected by 230 for its own marketing representations. This case seems even more appropriate to waive off 230; here, Yahoo’s PR flack’s promise to Barnes related to third party content, but no third party could render Yahoo’s promise untrue. In a regulatory regime where we try to distinguish between first party and third party content, it seems like Yahoo’s promise should be appropriately characterized as first party content.

While superficially the promissory estoppel ruling looks like a potentially big hole in 230, I don’t think it will materially change 230 jurisprudence for at least two reasons. First, promissory estoppel claims are notoriously hard to win. You may recall Prof. Grant Gilmore’s 1970s assessment that promissory estoppel was the “Death of Contracts”Amazon pixel [Amazon Affiliates link] because the exception (promissory estoppel) swallowed up the main rule (mutual assent/consideration required to form legally binding promises). Prof. Gilmore was absolutely right in theory, but he was wrong in practice. Successful promissory estoppel claims are rare, so judges generally do a good job treating them as an exception and not the rule. Indeed, I am skeptical that Barnes can win this promissory estoppel claim.

Second, websites can easily manage their potential exposure to this claim by picking their words carefully. As the court says, “a general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.”

As a result, I don’t expect this conclusion to rip open 230 jurisprudence. Nevertheless, this is not a good ruling for the 230 immunization. Going forward, I expect that plaintiffs will *always* raise promissory estoppel claims when they fear their main claim is preempted by 230, and the promissory estoppel allegations are not easily resolved at the motion to dismiss/judgment on the pleadings stage. As a result, plaintiffs will be able to get further into the litigation process (to the summary judgment stage or even to trial) and substantially raise the costs of a 230 defense.

47 USC 230 as an Affirmative Defense

(For more on this point, see Paul Levy)

Although the litigants and the lower court did not address the issue, the panel on its own initiative (with a single cite to the 2003 Doe v. GTE case from the 7th Circuit) characterized 47 USC 230 as an affirmative defense that cannot support a 12(b)(6) motion to dismiss. This issue has been discussed in several cases before, and many courts have had no problem supporting a 12(b)(6) motion to dismiss based on 47 USC 230. The court did not discuss any of this precedent or acknowledge that it was rejecting numerous cases from Ninth Circuit-governed courts. I’d also have to research the issue more closely, but I suspect this implicitly or explicitly contravenes the holding of other federal appellate courts. It would have been nice if this panel had acknowledged that this was a change from current practice and defended its conclusion accordingly, rather than simply treating this as a matter the appellate panel could resolve sua sponte. To be clear then, this panel now established Ninth Circuit law–changeable only by an en banc panel or the Supreme Court–without adequate briefing by the parties. That’s not cool.

I am not a proceduralist, but my understanding is that defendants in the Ninth Circuit will now have to file an answer to the complaint, at which point they can simultaneously file a 12(c) motion for judgment on the pleadings. Despite the extra paperwork, if the judge acts promptly on the judgment on the pleadings, then the net result will not be materially different (in cost or time) from the current procedure of filing a 12(b)(6).

However, discovery can commence on the filing of the answer. As a result, while plaintiffs have been unable to launch discovery attacks against 230-immunized defendants under the current rule, I expect plaintiffs will use this new opportunity to significantly jack up the defense costs. Indeed, a slow or cautious judge might allow discovery to proceed pretty far before the judge rules on the 12(c) motion. As a result, this procedural change has potentially significant economic consequences by creating the opportunity for expensive and abusive discovery.

Immunization of Federal Claims

The court recaps the prima facie 230 defense as follows:

subsection (c)(1) only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action,[FN4] as a publisher or speaker (3) of information provided by another information content provider. [emphasis added]

On the surface, this looks fine (as it should, because it largely tracks the statutory language), but where did the bolded language come from? Immediately before this, the court discusses 230(e)(3), which says that the statute preempts inconsistent state or local law. So is the court saying that 230 ONLY preempts state law and not any federal law? The blockquoted text is pretty darn clear.

FN4 only clouds matters further: “Section 230(e) also refers to the Amendment’s effect on several federal laws, but those laws are not relevant to this case.” OK, so is the court saying that the limiting language in the blockquoted text was OK only because this case didn’t involve federal claims, or is the court saying that it actually intends to preclude federal claims from 230 coverage unless Congress expressly instructed otherwise?

There is ZERO question in my mind that 230 preempts federal claims except for those expressly protected in 230(e). The statute’s architecture is entirely clear, and the caselaw has been crystal clear about this as well. After all, if federal claims weren’t preempted by 230, the Ninth Circuit could have easily and quickly disposed of the case on that ground without its other angst. So why, then, did the panel recap the prima facie defense with an express and easily quoted but clearly imprecise limitation in it? In my opinion, this is just sloppy, irresponsible, gratuitous dicta. If the Ninth Circuit doesn’t correct this error, I’m confident plaintiffs will force them to do so soon enough.

(Making this error especially irresponsible is that the Ninth Circuit has already struggled with distinguishing 230’s application to federal and state claims, adopting in the ccBill case that all state IP claims were preempted by 230–a ruling that two district courts have already rejected, and I expect none will follow).

What’s Next?

I see two main alternative futures. The first is that there could be further proceedings in this case, either a rehearing by the same panel or a rehearing en banc. In theory, this case could be appealed to the Supreme Court, but I can’t imagine the defendants would seek cert before trying another round at the Ninth Circuit. Frankly, if I were Yahoo, I would rather try my luck on the promissory estoppel claim in the district court (or settle up with the plaintiff) than try my luck with the Supreme Court. Personally, I think this is an outstanding candidate for rehearing, especially on the affirmative defense issue where the panel inappropriately freelanced, and in an ideal world the panel or the 9th Circuit would issue a new opinion that is better than this one. This is exactly what happened in the case, and part of why I’m having a deja vu feeling.

The other main alternative is that the opinion could stand as written. Irrespective of what happens on remand, in this alternative we will see plaintiffs routinely allege promissory estoppel as part of virtually every litigation where 47 USC 230 might be a defense. We’ll also see plaintiffs bang on the other sloppy interstices of the opinion, looking for new loopholes in the immunization. Finally, I expect we’ll see more plaintiffs seek out the 9th Circuit as the venue of choice for claims that involve 47 USC 230–not only can the plaintiffs try to exploit the holes in the and Barnes opinions, but it’s also overwhelmingly clear that a number of Ninth Circuit judges are hankering for an opportunity to take their whack at 47 USC 230.

Ironically, to the extent websites change their behavior in response to the opinion, the primary effect will be counterintuitive and perhaps counterproductive. This opinion might actually *reduce* the flow of information to people who complain to a website about third party content because the website could be liable for what it says in any emails or other communications in response to the complaints. In many cases, the website’s non-responses should be so content-free that they are useless. As a result, I think people complaining about third party tortious content are going to find it even more frustrating dealing with websites when trying to get those websites to take down the content.

Finally, I expect this opinion to force the issue that has been percolating since the Mazur case: can a website be liable for its marketing representations even if those marketing representation are rendered untrue by third party content or actions? I think this panel indirectly answers the question with a loud YES. Thus, I expect more plaintiffs will use website marketing copy or other site disclosures to allege a breach of contract or one of the many related claims (false advertising, promissory estoppel, unfair competition, etc.) and thereby bypass 47 USC 230 altogether. Website operators, this is your cue to clean up your site disclosures or other marketing copy PRONTO.

A Final Thought: What is Going on With 230 Jurisprudence in the Past 6 Months?

47 USC 230 has weathered plaintiff attacks very well in the past dozen years, but the last 6 months have opened up a number of angles for plaintiffs to explore. Consider the track record:

* Woodhull (October): soliciting and publishing a defamatory third party email wasn’t covered by 230

* Doe v. SexSearch (December): as mentioned, the court stepped back from saying 230 preempted liability for marketing representations

* StubHub (January): interference with business claim wasn’t preempted by 230

* Gourlay (March): web host who provided extra commercial services to its customer couldn’t claim 230

* Project Playlist (March): 230 doesn’t preempt state IP claims (this is a loss only because it contravenes the wrongly decided Ninth Circuit ccBill case, which was more defense-favorable).

* This case, saying that a promissory estoppel claim isn’t preempted by 230.

I’m not sure what to make of this trend, but it’s clear that we’re finally finding some substantial limits in 230’s reach, and that’s creating new litigation opportunities for plaintiffs. For more on this, see Evan Brown.

Other Commenters

* Paul Levy

* Evan Brown

* Tom O’Toole

* Lee Gesmer

* Wendy Davis

* Jeff Neuburger

* Marc Randazza

* Howard Bashman