TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

February 17, 2014 · by Venkat Balasubramani · in Content Regulation, Derivative Liability, Spam

shutterstock / popart – pop art background office stamp with the word spam

Yahoo! offers instant message users the ability to receive a text message notification of an instant message. A customer received two messages, and sued for violations of the Telephone Consumer Protection Act. The court denies Yahoo!’s motion for summary judgment.

The first message stated:

A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or to go y.ahoo.it/imsms.

The second message stated:

Hey get online I have to talk to you.

As described the court, Yahoo!’s messenger service allows Yahoo! users to send instant messages to mobile devices from their computers. The tool ostensibly “allows people who do not own mobile phones to send and receive text messages from their computers.”

Yahoo! implemented a notification process for these types of messages. If the recipient has not previously been sent a computer to phone message, then the recipient is sent a single automatically generated notification message. Although the facts are not totally clear to me, the court says that the user can opt-out of receiving future text messages in one of several ways: by replying with a certain command, by going to the Yahoo! webpage and opting out, or by receiving four messages and not responding to any of them.

Coming back to Yahoo!’s summary judgment motion, it was based on three separate grounds: (1) the single confirmatory text message was not covered by the TCPA; (2) Yahoo! did not use an automatic telephone dialer system; and (3) the claims were barred by Section 230.

The confirming text message is subject to the TCPA: The court asks whether the initial message was consented to and finds the evidence inconclusive. Yahoo! relied among other cases on Ibey v. Taco Bell, but the court said that case was different because there Taco Bell sent a single text message confirming an opt-out in response to the plaintiff’s initial text, and the court concluded that the opt-out confirmation was not subject to the TCPA. Ultimately, the court distinguishes Ibey and appears to say that a single informational message is unlikely to fall outside the TCPA, unless it can satisfy the “prior express consent” exception.

Did Yahoo! use an automatic telephone dialing system: The prevailing cases construing the statute on this point (and perhaps the statute itself) have a ridiculously broad definition of what type of equipment must be used to make the call in question (the capacity to store or produce numbers to be called using a random generator or from a list—basically any computer will suffice). Defendants may have to make this argument as a matter of course, but as in other cases, it did not fare well here.

Yahoo! Section 230 defense: Yahoo! also argued that its informational text was subject to immunity under Section 230(c)(2)(B), where an interactive computer service “[takes] action to enable or make available . . . the technical means to restrict access to [objectionable material].” The court rejects this defense. According to the court, Yahoo! “does not block or filter the unidentified third party user’s message to Plaintiff.” The court says Holomaxx v. Microsoft is inapposite because in that case involved Microsoft’s filtering of third party messages (and the third party’s unsuccessful effort to reverse this decision). Finally, the court says that “neither Yahoo! nor the . . . user have the opportunity to determine whether the third party message is ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’” Citing to a concurring opinion in Zango v. Kaspersky, the court cautions against a blank check to an interactive computer service’s ability to invoke the “otherwise objectionable” language from Section 230(c)(2)(B).

Ugh.

For starters, it’s surprising to see Yahoo! implement a feature in this manner, given the well-documented risks associated with unsolicited text liability and with cross-platform messaging. (See “Telephone Numbers as Identity Authenticators” (discussing Abrams v. Facebook), and the numerous other TCPA rulings we’ve discussed on the blog, such as Joffe, Satterfield, Voxernet. The list is endless.) An ideal solution from a consumer perspective would be to allow end users to opt-in to particular numbers that they wish to receive texts from. Another less ideal, but probably legally safer, alternative would be to allow consumers to opt-in to the IM-to-SMS feature in the first place, rather than making it opt-out. Even an opt-in after an initial informational message would have been preferable to the mechanism Yahoo! seems to have used. At worst, a broad consent provision may have supported a “prior express consent” argument but the fact that Yahoo! didn’t raise it makes me think the consent was either clunky or not broad enough to address these types of texts.

Of course, that doesn’t make this lawsuit meritorious by any stretch. This is nothing more than another attempt by plaintiffs to exploit an incredibly broad statute that is turns the landscape into a minefield for companies such as Yahoo! Yahoo! was not advertising any third party products or for that matter its own products. This case can be contrasted with the Voxernet case where the initial message was at least ostensibly designed to encourage would-be users to sign on to the service. Here, the recipient is already a customer of Yahoo!. Sure it sucks to receive a text message from some Yahoo! IM-spammer, but as a consumer you can easily opt-out; and if your privacy settings are such that people you don’t know cannot send you messages, chances are the text is from someone you knew in the first place anyway. Tough to argue in this circumstance that the plaintiffs are suffering any type of harm that Congress intended to be remedied through the TCPA.

Yahoo!’s 230 argument seems credible, and the judge’s discussion about what type of content should be filtered and any dangers of a broad definition of “otherwise objectionable” content leading to blocking decisions for anti-competitive reasons seems totally inapplicable here. Yahoo! is providing information or technical measures to allow users to block unwanted content (the text messages), and this looks like what this provision was designed for. Perhaps Yahoo!’s phrasing in its confirmation message was not ideal (maybe it could have said “you have received an IM-to-SMS message … click here to report as spam and stop receiving further messages”). But this shouldn’t be determinative. An additional point: couldn’t Yahoo! have simply transmitted user messages and then claimed straightforward Section 230 immunity for re-transmitting user content? If that’s the case, it doesn’t seem like Yahoo! should get dinged for taking steps to make it easier for consumers to manage their preferences.

[For more on how courts can and should interpret Section 230(c)(2) more broadly than this court did, see Eric’s article.]

Either way, bad implementation and a questionable ruling.

Case citation: Sherman v. Yahoo! Inc., No. 13cv0041-GPC-WVG (S.D. Cal. Feb. 3, 2014). The complaint.

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Court Affirms Robust ISP Protection For Blocking Bulk Emails — Holomaxx v. Microsoft/Yahoo

Telephone Numbers as Identity Authenticators–Abrams v. Facebook

Group Text Services Grapple with TCPA Class Actions

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.