Barnes v. Yahoo!, Inc.

570 F.3d 1096 (9th Cir. 2009)

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Nature of the Case

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Facts

In late 2004, P broke off a lengthy relationship with her boyfriend. He responded by posting profiles of P on a website run by D. P did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of P and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in D's online 'chat rooms,' posing as P and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at P's place of employment. Before long, men whom P did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex. In accordance with D policy, P mailed a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. One month later, D had not responded, but the undesired advances from unknown men continued. P again asked D by mail to remove the profiles. Nothing happened. P sent Yahoo two more mailings. During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, D broke its silence; its Director of Communications, a Ms. Osako, called P and asked her to fax directly the previous statements she had mailed. Ms. Osako told P that she would 'personally walk the statements over to the division responsible for stopping unauthorized profiles, and they would take care of it.' P claims to have relied on this statement and took no further action. Two months passed without word from D, at which point P filed this lawsuit against D. The profiles disappeared from D's website, apparently never to return. P alleges a tort for the negligent provision or non-provision of services which D undertook to provide. P also refers in her complaint and in her briefs to D's 'promise' to remove the indecent profiles and her reliance thereon to her detriment. D removed the action to federal court and moved to dismiss the complaint under 12(b)(6). D contends that section 230(c)(1) of the Communications Decency Act renders it immune from liability. The court dismissed, and P appealed.