Barnes v. Yahoo, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CECILIA L. BARNES,  No. 05-36189

Plaintiff-Appellant,

v.  D.C. No.

CV-05-00926-AA

YAHOO!, INC., a Delaware Corp.,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted

October 14, 2008—Portland, Oregon

Filed May 7, 2009

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain

5311

5314 BARNES v. YAHOO!, INC.

COUNSEL

Thomas R. Rask, III, Kell, Alterman & Runstein LLP, Port-

land, Oregon, argued the cause for the appellant and filed

briefs. Denise N. Gorrell, Kell, Alterman & Runstein LLP,

Portland, Oregon, was also on the briefs.

Patrick J. Carome, Wilmer, Cutler, Pickering, Hale and Dorr

LLP, Washington, D.C., argued the cause for the appellee and

filed the brief; Samir Jain and C. Colin Rushing, Wilmer, Cut-

ler, Pickering, Hale and Dorr LLP, Washington, D.C., and

Reginald Davis and Eulonda Skyles, of Counsel for Yahoo!,

Inc., Sunnyvale, California, were also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Communications Decency Act

of 1996 protects an internet service provider from suit where

it undertook to remove from its website material harmful to

the plaintiff but failed to do so.

BARNES v. YAHOO!, INC. 5315

I

This case stems from a dangerous, cruel, and highly inde-

cent use of the internet for the apparent purpose of revenge.1

In late 2004, Cecilia Barnes broke off a lengthy relationship

with her boyfriend. For reasons that are unclear, he responded

by posting profiles of Barnes on a website run by Yahoo!, Inc.

(“Yahoo”). According to Yahoo’s Member Directory, “[a]

public profile is a page with information about you that other

Yahoo! members can view. You[r] profile allows you to pub-

licly post information about yourself that you want to share

with the world. Many people post their age, pictures, location,

and hobbies on their profiles.” Through Yahoo’s online ser-

vice, computer users all over the country and the world can

view such profiles.

Barnes did not authorize her now former boyfriend to post

the profiles, which is hardly surprising considering their con-

tent. The profiles contained nude photographs of Barnes 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 con-

ducted discussions in Yahoo’s online “chat rooms,” posing as

Barnes and directing male correspondents to the fraudulent

profiles he had created. The profiles also included the

addresses, real and electronic, and telephone number at

Barnes’ place of employment. Before long, men whom

1

The parties agree that, as this appeal comes to us on grant of a motion

for dismissal under Federal Rule of Civil Procedure 12(b)(6), we accept

as true the facts alleged in the complaint and construe them in the light

most favorable to the plaintiff. Anderson v. Clow (In re Stac Electronics

Securities Litig.), 89 F.3d 1399, 1403 (9th Cir. 1996) (also noting that

“conclusory allegations of law and unwarranted inferences are insufficient

to defeat a motion to dismiss for failure to state a claim” (internal quota-

tion marks omitted)). Yahoo has indicated that it would “hotly contest[ ]”

the factual allegations of the complaint if it is not dismissed.

5316 BARNES v. YAHOO!, INC.

Barnes did not know were peppering her office with emails,

phone calls, and personal visits, all in the expectation of sex.

In accordance with Yahoo policy, Barnes mailed Yahoo a

copy of her photo ID and a signed statement denying her

involvement with the profiles and requesting their removal.

One month later, Yahoo had not responded but the undesired

advances from unknown men continued; Barnes again asked

Yahoo by mail to remove the profiles. Nothing happened. The

following month, Barnes sent Yahoo two more mailings. Dur-

ing 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, Yahoo broke its silence; its Director of

Communications, a Ms. Osako, called Barnes and asked her

to fax directly the previous statements she had mailed. Ms.

Osako told Barnes that she would “personally walk the state-

ments over to the division responsible for stopping unautho-

rized profiles and they would take care of it.” Barnes claims

to have relied on this statement and took no further action

regarding the profiles and the trouble they had caused.

Approximately two months passed without word from Yahoo,

at which point Barnes filed this lawsuit against Yahoo in Ore-

gon state court. Shortly thereafter, the profiles disappeared

from Yahoo’s website, apparently never to return.

Barnes’ complaint against Yahoo is somewhat unclear, but

it appears to allege two causes of action under Oregon law.

First, the complaint suggests a tort for the negligent provision

or non-provision of services which Yahoo undertook to pro-

vide. As Barnes pointed out in her briefs, Oregon has adopted

section 323 of the Restatement (Second) of Torts (1965),

which describes the elements of this claim. For the sake of

brevity, we refer to this tort, which is really a species of negli-

gence, as a “negligent undertaking.” Barnes also refers in her

complaint and in her briefs to Yahoo’s “promise” to remove

the indecent profiles and her reliance thereon to her detriment.

We construe such references to allege a cause of action under

section 90 of the Restatement (Second) of Contracts (1981).

BARNES v. YAHOO!, INC. 5317

After Yahoo removed the action to federal court, it moved

to dismiss the complaint under Federal Rule of Civil Proce-

dure 12(b)(6). Yahoo contended that section 230(c)(1) of the

Communications Decency Act (“the Act”) renders it immune

from liability in this case. See 47 U.S.C. § 230(c)(1). The dis-

trict court granted the motion to dismiss, finding that the Act

did in fact protect Yahoo from liability as a matter of law.

Barnes timely appealed, claiming that, in the first place, the

so-called immunity under section 230(c) did not apply to the

cause of action she has brought and that, even if it did, Yahoo

did not fit under the terms of such immunity.

II

Although the district court dismissed this case under Rule

12(b)(6), section 230(c) provides an affirmative defense. See

Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003). The

assertion of an affirmative defense does not mean that the

plaintiff has failed to state a claim, and therefore does not by

itself justify dismissal under Rule 12(b)(6). See Gomez v.

Toledo, 446 U.S. 635, 640 (1980) (“Since qualified immunity

is a defense, the burden of pleading it rests with the defen-

dant.”). Neither the parties nor the district court seem to have

recognized this, but Yahoo ought to have asserted its affirma-

tive defense by responsive pleading, which is the normal

method of presenting defenses except for those specifically

enumerated in Rule 12(b). Fed. R. Civ. P. 8(c)(1), 12(b)

(“How to Present Defenses. Every defense to a claim for

relief in any pleading must be asserted in the responsive

pleading if one is required.”). It might then have sought judg-

ment on the pleadings under Rule 12(c).

However, this oversight deprives us neither of subject-

matter nor appellate jurisdiction, as this docket remains an

appeal from a final decision of the district court in a diversity

case. See 28 U.S.C. §§ 1291 and 1332(a)(1). This being so, as

a matter of judicial economy we decline to “fuss[ ] over pro-

cedural niceties to which the parties are indifferent.” GTE

5318 BARNES v. YAHOO!, INC.

Corp., 347 F.3d at 657. We hasten to clarify, all the same, that

section 230 is an affirmative defense and district courts are to

treat it as such.

III

The district court dismissed Barnes’ claim on the ground

that section 230(c)(1) makes Yahoo “immune” against any

liability for the content that Barnes’ former boyfriend had

posted. We begin by analyzing the structure and reach of the

statute itself.

A

[1] Section 230 of the Act, also known as the Cox-Wyden

Amendment (“the Amendment”), protects certain internet-

based actors from certain kinds of lawsuits. The Amendment

begins with a statement of findings and a statement of policy,

in subsections 230(a) and (b), respectively. These are rather

general, but they illustrate Congress’ appreciation for the

internet as a “forum for a true diversity of . . . myriad avenues

for intellectual activity,” which “ha[s] flourished . . . with a

minimum of government regulation.” § 230(a)(3)-(4). The

statute’s “policy” includes the promotion of interactive com-

puter services and the “vibrant and competitive free market”

for such services, as well as the encouragement of “blocking

and filtering technologies that empower parents to restrict

their children’s access to objectionable or inappropriate online

material.” § 230(b)(1)-(2) & (4)-(5). We have recognized in

this declaration of statutory purpose two parallel goals. The

statute is designed at once “to promote the free exchange of

information and ideas over the Internet and to encourage vol-

untary monitoring for offensive or obscene material.” Cara-

fano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir.

2003).

[2] Though we keep these goals, which the statutory lan-

guage declares, in mind, we must closely hew to the text of

BARNES v. YAHOO!, INC. 5319

the statutory bar on liability in construing its extent. The oper-

ative section of the Amendment is section 230(c), which

states in full:

(c) Protection for “good samaritan” blocking and

screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer ser-

vice shall be treated as the publisher or speaker of

any information provided by another information

content provider.

(2) Civil liability

No provider or user of an interactive computer ser-

vice shall be held liable on account of—

(A) any action voluntarily taken in good faith to

restrict access to or availability of material that the

provider or user considers to be obscene, lewd, las-

civious, filthy, excessively violent, harassing, or oth-

erwise objectionable, whether or not such material is

constitutionally protected; or

(B) any action taken to enable or make available

to information content providers or others the techni-

cal means to restrict access to material described in

paragraph (1).

[3] Section 230(c) has two parts. Yahoo relies exclusively

on the first part, which bars courts from treating certain inter-

net service providers as publishers or speakers. Looking at the

text, it appears clear that neither this subsection nor any other

declares a general immunity from liability deriving from

third-party content, as Yahoo argues it does. “Subsection

(c)(1) does not mention ‘immunity’ or any synonym.” Chi.

5320 BARNES v. YAHOO!, INC.

Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigs-

list, Inc., 519 F.3d 666, 669 (7th Cir. 2008). Our recent en

banc decision in Fair Housing Council of San Fernando Val-

ley v. Roommates.com, LLC, rested not on broad statements

of immunity but rather on a careful exegesis of the statutory

language. 521 F.3d 1157, 1171 (9th Cir. 2008) (en banc) (not-

ing that to “provid[e] immunity every time a website uses data

initially obtained from third parties would eviscerate [the stat-

ute]”2).

[4] Following this approach, one notices that subsection

(c)(1), which after all is captioned “Treatment of publisher or

speaker,” precludes liability only by means of a definition.

“No provider or user of an interactive computer service,” it

says, “shall be treated as the publisher or speaker of any

information provided by another information content provid-

er.” § 230(c)(1) (emphasis added). Subsection 230(e)(3)

makes explicit the relevance of this definition, for it cautions

that “[n]o cause of action may be brought and no liability may

be imposed under any State or local law that is inconsistent

with this section.”3 Bringing these two subsections together,

it appears that 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,4

as a publisher or speaker (3) of information provided by

another information content provider.

[5] Barnes did not contest in the district court that Yahoo

is a provider of an interactive computer service, and we have

no trouble concluding that it qualifies as one.5 Nor is there any

2

Roommates interpreted a different subsection of the Amendment,

§ 203(f)(3), but its approach remains instructive.

3

Conversely, “[n]othing in this section shall be construed to prevent any

State from enforcing any State law that is consistent with this section.”

§ 230(e)(3).

4

Section 230(e) also refers to the Amendment’s effect on several federal

laws, but those laws are not relevant to this case.

5

Section 230 helpfully defines “interactive computer service” as “any

information service, system, or access software provider that provides or

BARNES v. YAHOO!, INC. 5321

dispute that the “information content”—such as it is—at issue

in this case was provided by another “information content pro-

vider.”6 The flashpoint in this case is the meaning of the “pub-

lisher or speaker” part of subsection (c)(1), and that is where

we train our sights.

B

[6] By its terms, then, section (c)(1) only ensures that in

certain cases an internet service provider7 will not be “treated”

as the “publisher or speaker” of third-party content for the

purposes of another cause of action. The question before us

is how to determine when, for purposes of this statute, a plain-

tiff’s theory of liability would treat a defendant as a publisher

or speaker of third-party content.

The cause of action most frequently associated with the

cases on section 230 is defamation. See, e.g., Carafano, 339

F.3d 1119; Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

This is not surprising, because, as we and some of our sister

circuits have recognized, Congress enacted the Amendment in

part to respond to a New York state court decision, Stratton

Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.

enables computer access by multiple users to a computer server, including

specifically a service or system that provides access to the Internet and

such systems operated or services offered by libraries or educational insti-

tutions.” § 230(f)(2).

6

The statute also tells us that this term “means any person or entity that

is responsible, in whole or in part, for the creation or development of

information provided through the Internet or any other interactive com-

puter service.” § 230(f)(3). We have recently reiterated that “providing

neutral tools to carry out what may be unlawful or illicit . . . does not

amount to ‘development’ ” for these purposes, Roommates, 521 F.3d at

1169; thus it is crystal clear that Yahoo is not an “information content pro-

vider” of the profiles.

7

Subsection 230(c)(1) also refers to interactive computer service users,

which we do not mention further because such reference is irrelevant to

this case.

5322 BARNES v. YAHOO!, INC.

Sup. Ct. May 24, 1995) (unpublished), which held that an

internet service provider could be liable for defamation. See

e.g., Roommates, 521 F.3d at 1163; see also Zeran v. Am.

Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).

[7] But “a law’s scope often differs from its genesis,”

Craigslist, 519 F.3d at 671, and the language of the statute

does not limit its application to defamation cases. Indeed,

many causes of action might be premised on the publication

or speaking of what one might call “information content.” A

provider of information services might get sued for violating

anti-discrimination laws, see, e.g., Roommates, 521 F.3d

1157; for fraud, negligent misrepresentation, and ordinary

negligence, see, e.g., Doe v. MySpace, Inc., 528 F.3d 413 (5th

Cir. 2008), cert. denied, 129 S. Ct. 600; for false light, see,

e.g., Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002); or

even for negligent publication of advertisements that cause

harm to third parties, see Braun v. Soldier of Fortune Maga-

zine, Inc., 968 F.2d 1110 (11th Cir. 1992). Thus, 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. To put it another

way, courts must ask whether the duty that the plaintiff

alleges the defendant violated derives from the defendant’s

status or conduct as a “publisher or speaker.” If it does, sec-

tion 230(c)(1) precludes liability.

[8] We have indicated that publication involves reviewing,

editing, and deciding whether to publish or to withdraw from

publication third-party content. See Roommates, 521 F.3d at

1170-71 (“[A]ny activity that can be boiled down to deciding

whether to exclude material that third parties seek to post

online is perforce immune under section 230.”). We need not

perform any intellectual gymnastics to arrive at this result, for

it is rooted in the common sense and common definition of

what a publisher does. One dictionary defines “publisher,” in

BARNES v. YAHOO!, INC. 5323

relevant part, as “the reproducer of a work intended for public

consumption” and also as “one whose business is publica-

tion.” See Webster’s Third New International Dictionary 1837

(Philip Babcock Gove ed., 1986). Thus, a publisher reviews

material submitted for publication, perhaps edits it for style or

technical fluency, and then decides whether to publish it.8 See

also Zeran, 129 F.3d at 330 (listing “deciding whether to pub-

lish, withdraw, postpone or alter content” as examples of “a

publisher’s traditional editorial functions”).

IV

Which leads us to whether Barnes, in her negligent under-

taking claim, seeks to treat Yahoo as a “publisher or speaker”

of the indecent profiles in order to hold Yahoo liable.

A

The Oregon law tort that Barnes claims Yahoo committed

derives from section 3239 of the Restatement (Second) of

Torts, which states: One who undertakes, gratuitously or for

consideration, to render services to another which he should

recognize as necessary for the protection of the other’s person

or things, is subject to liability to the other for physical harm

resulting from his failure to exercise reasonable care to per-

form his undertaking, if

(a) his failure to exercise such care increases the

risk of such harm, or

8

As we pointed out in Batzel, it is immaterial whether this decision

comes in the form of deciding what to publish in the first place or what

to remove among the published material. 333 F.3d at 1032. This is particu-

larly so in the context of the internet, where material can be “posted” and

“unposted” with ease.

9

We do not decide in this appeal whether Barnes has properly alleged

this cause of action under Oregon law.

5324 BARNES v. YAHOO!, INC.

(b) the harm is suffered because of the other’s reli-

ance upon the undertaking.

Barnes argues that this tort claim would not treat Yahoo as

a publisher. She points to her complaint, which acknowledges

that although Yahoo “may have had no initial responsibility

to act, once [Yahoo,] through its agent, undertook to act, [it]

must do so reasonably.” According to Barnes, this makes the

undertaking, not the publishing or failure to withdraw from

publication, the source of liability. Under this theory, Barnes’

cause of action would evade the reach of section 230(c)

entirely because it treats Yahoo not as a publisher, but rather

as one who undertook to perform a service and did it negli-

gently.

[9] We are not persuaded. As we implied above, a plaintiff

cannot sue someone for publishing third-party content simply

by changing the name of the theory from defamation to negli-

gence. Nor can he or she escape section 230(c) by labeling as

a “negligent undertaking” an action that is quintessentially

that of a publisher. The word “undertaking,” after all, is

meaningless without the following verb. That is, one does not

merely undertake; one undertakes to do something. And what

is the undertaking that Barnes alleges Yahoo failed to perform

with due care? The removal of the indecent profiles that her

former boyfriend posted on Yahoo’s website. But removing

content is something publishers do, and to impose liability on

the basis of such conduct necessarily involves treating the lia-

ble party as a publisher of the content it failed to remove. See

Craigslist, 519 F.3d at 671 (finding defendant protected

because “only in a capacity as publisher could [the defendant]

be liable under § 3604(c) [of the Fair Housing Act]”). In other

words, the duty that Barnes claims Yahoo violated derives

from Yahoo’s conduct as a publisher—the steps it allegedly

took, but later supposedly abandoned, to de-publish the offen-

sive profiles. It is because such conduct is publishing conduct

that we have insisted that section 230 protects from liability

“any activity that can be boiled down to deciding whether to

BARNES v. YAHOO!, INC. 5325

exclude material that third parties seek to post online.” Room-

mates, 521 F.3d at 1170-71.

Although the tort of defamation is not the only form of lia-

bility for publishers to which subsection (c)(1) applies, its

reach confirms our conclusion. Indeed, we note that Yahoo

could be liable for defamation for precisely the conduct of

which Barnes accuses it. Defamation law sometimes imposes

“an affirmative duty to remove a publication made by anoth-

er.” Prosser and Keaton on Torts § 113, at 803. Courts have

applied this principle, including in a case that reads like a

low-tech version of the situation before us. In Hellar v.

Bianco, 244 P.2d 757, 758 (Cal. Ct. App. 1952), a woman

received a phone call from a man who sought to arrange an

unconventional, but apparently amorous, liaison. Id. at 758.

After being rebuffed, the man informed the woman that her

phone number appeared on the bathroom wall of a local bar

along with writing indicating that she “was an unchaste

woman who indulged in illicit amatory ventures.” Id. The

woman’s husband promptly called the bartender and

demanded he remove the defamatory graffito, which the bar-

tender said he would do when he got around to it. Id. at 758-

59. Shortly thereafter, the husband marched to the bar, police-

man in tow, and discovered the offending scrawl still gracing

the wall. Id. at 759. He defended his wife’s honor by suing the

bar’s owner.

[10] The California Court of Appeal held that it was “a

question for the jury whether, after knowledge of its exis-

tence, [the bar owner] negligently allowed the defamatory

matter to remain for so long a time as to be chargeable with

its republication.” Id. at 759. This holding suggests that

Yahoo could have been sued under our facts for defamation,

one of the elements of which is publication, which strongly

confirms our view that section 230(c)(1) bars this lawsuit.10

10

Hellar is not an anomaly, but of a piece with a longstanding theory

of defamation liability. See Byrne v. Dean, (1937) 1 K.B. 818; Tidmore

5326 BARNES v. YAHOO!, INC.

B

Barnes argues that, even if subsection 230(c)(1) applies to

this tort in a general sense, it does not cover her claim because

she is suing Yahoo as a distributor, not as a publisher. This

argument asks us to join an ongoing academic debate, which

has developed in response to the Fourth Circuit’s Zeran opin-

ion, on whether “publisher” in subsection 230(c)(1) means

only “primary publisher” or both “primary publisher” and

“distributor,” also known as a “secondary publisher,” for pur-

poses of defamation liability.

To understand this debate, we briefly sketch the liability of

publishers and distributors in defamation law. One of the ele-

ments of the tort of defamation is “publication” of the defam-

atory matter, which simply means “communication

intentionally or by a negligent act to one other than the person

defamed.” Restatement (Second) of Torts § 577(1) (1965). It

is well established that “[e]very repetition of the defamation

is a publication in itself,” whether or not the person repeating

the defamation attributes it to its source. Prosser & Keaton

§ 113, at 799. “[E]veryone who takes part in the publication,

as in the case of the owner, editor, printer, vendor, or even

carrier of a newspaper is charged with publication.” Id.; see

also Cianci v. New Times Publ’g Co., 639 F.2d 54, 60-61 (2d

Cir. 1980) (noting the “black-letter rule that one who repub-

lishes a libel is subject to liability just as if he had published

it originally” (internal quotation marks omitted)). However,

defamation law assigns different requirements of fault in

order to hold someone liable for different forms of publica-

tion. Hence, it became “necessary to classify participants into

three categories: primary publishers, secondary publishers or

v. Mills, 32 So. 2d 769 (Ala. Ct. App. 1947). Contra Scott v. Hull, 259

N.E.2d 160 (Ohio Ct. App. 1970) (accepting the Byrne line of cases but

distinguishing it on the ground that the writing was on the outside of the

proprietor’s building and, thus, not [the tenant’s] responsibility to

remove).

BARNES v. YAHOO!, INC. 5327

disseminators, and those who are suppliers of equipment and

facilities and are not publishers at all.” Prosser & Keaton,

§ 113 at 803. Primary publishers were held to a strict liability

standard, whereas secondary publishers were only liable for

publishing defamation with actual or constructive knowledge

of its defamatory character. Id. at 810-11. Secondary publish-

ers came to be known as distributors, see, e.g., Cubby, Inc. v.

CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991).

Pointing to this legal background, Barnes argues that the

term “publisher” in section 230(c)(1) refers only to primary

publishers and not to secondary publishers or distributors. She

argues that because Congress enacted section 230 to overrule

Stratton Oakmont, which held an internet service provider lia-

ble as a primary publisher, not a distributor, the statute does

no more than overrule that decision’s application of publisher

liability. In Zeran, the Fourth Circuit rejected a similar argu-

ment, concluding that so-called distributor liability is merely

a subset of publisher liability for purposes of defamation law.

129 F.3d at 332. We have taken note of this issue before, but

have not yet had to rule on it for ourselves. See Batzel, 333

F.3d at 1027 n.10 (“We . . . need not decide whether

§ 230(c)(1) encompasses both publishers and distributors.”).

In our view, however, we need not resolve the dispute at

all, because it has little to do with the meaning of the statutory

language. As noted above, section 230(c)(1) precludes courts

from treating internet service providers as publishers not just

for the purposes of defamation law, with its particular distinc-

tion between primary and secondary publishers, but in gen-

eral. The statute does not mention defamation, and we decline

to read the principles of defamation law into it. In any event,

if the reach of section 230(c)(1) were fastened so tightly to the

nuances of defamation law, our Roommates opinion, which

dealt with a lawsuit under the Fair Housing Act, would simply

have declared that the provision did not apply because there

was no claim of defamation. We will not engage in an analy-

5328 BARNES v. YAHOO!, INC.

sis so contrary to the reasoning, and even some of the holding,

of our precedent.

Nor do we find particularly edifying the debate over the

exact reach of Stratton Oakmont, the New York case Con-

gress apparently meant to overrule. As the Seventh Circuit has

recognized,

[a]lthough the impetus for the enactment of § 230(c)

as a whole was a [decision] holding an information

content provider liable, as a publisher, because it had

exercised some selectivity with respect to the sexu-

ally oriented material it would host for customers, a

law’s scope often differs from its genesis. Once the

legislative process gets rolling, interest groups seek

(and often obtain) other provisions.

Craigslist, 519 F.3d at 671. Both parties make a lot of sound

and fury on the congressional intent of the immunity under

section 230, but such noise ultimately signifies nothing. It is

the language of the statute that defines and enacts the con-

cerns and aims of Congress; a particular concern does not

rewrite the language.

C

Leaving no stone unturned, Barnes reminds us that the stat-

utory purpose of the Amendment is to encourage websites

affirmatively to police themselves, not to provide an excuse

for doing nothing. This argument from statutory purpose has

more force to it, because section 230(c) is, after all, captioned

“Protection for ‘good samaritan’ blocking and screening of

offensive material.” Cf. Roommates, 521 F.3d at 1163-64. It

would indeed be strange for a provision so captioned to pro-

vide equal protection as between internet service providers

who do nothing and those who attempt to block and screen

offensive material. As the Seventh Circuit has recognized, if

section (c) did provide equal protection, then “[internet ser-

BARNES v. YAHOO!, INC. 5329

vice providers] may be expected to take the do-nothing option

and enjoy immunity” because “precautions are costly.” GTE

Corp., 347 F.3d at 660.

[11] A closer look at the whole of section 230(c), we

believe, makes sense of this apparent contradiction. Subsec-

tion (c)(1), by itself, shields from liability all publication deci-

sions, whether to edit, to remove, or to post, with respect to

content generated entirely by third parties. Subsection (c)(2),

for its part, provides an additional shield from liability, but

only for “any action voluntarily taken in good faith to restrict

access to or availability of material that the provider . . . con-

siders to be obscene . . . or otherwise objectionable.”

§ 230(c)(2)(A). Crucially, the persons who can take advantage

of this liability are not merely those whom subsection (c)(1)

already protects, but any provider of an interactive computer

service. See § 230(c)(2). Thus, even those who cannot take

advantage of subsection (c)(1), perhaps because they devel-

oped, even in part, the content at issue, see Roommates, 521

F.3d at 1162-63, can take advantage of subsection (c)(2) if

they act to restrict access to the content because they consider

it obscene or otherwise objectionable. Additionally, subsec-

tion (c)(2) also protects internet service providers from liabil-

ity not for publishing or speaking, but rather for actions taken

to restrict access to obscene or otherwise objectionable con-

tent.11

Thus, we must reject Barnes’ contention that it does vio-

lence to the statutory scheme to bar her suit for negligent

undertaking. To summarize, we hold that section 230(c)(1)

bars Barnes’ claim, under Oregon law, for negligent provision

of services that Yahoo undertook to provide. The district court

properly granted Yahoo’s motion to dismiss that cause of

action.

11

It might be more straightforward to narrow the meaning of “publisher”

liability to include only affirmative acts of publication but not the refusal

to remove obscene material. That path, however, is closed to us. Batzel,

333 F.3d at 1032.

5330 BARNES v. YAHOO!, INC.

V

As we indicated above, Barnes’ complaint could also be

read to base liability on section 90 of the Restatement (Sec-

ond) of Contracts, which describes a theory of recovery often

known as promissory estoppel. At oral argument, counsel for

Barnes acknowledged that its tort claim might be “recast” in

terms of promissory estoppel. We think it might, and in ana-

lyzing it as such now we add that liability for breach of prom-

ise is different from, and not merely a rephrasing of, liability

for negligent undertaking.

A

[12] Oregon has accepted promissory estoppel as a theory

of recovery. Bixler v. First Nat’l Bank of Or., 619 P.2d 895,

898 (Or. Ct. App. 1980) (citing Schafer v. Fraser, 290 P.2d

190, 199-206 (Or. 1955)). The “principal criteria” that deter-

mine “when action renders a promise enforceable” under this

doctrine are: “(1) a promise[;] (2) which the promisor, as a

reasonable person, could foresee would induce conduct of the

kind which occurred[;] (3) actual reliance on the promise[;]

(4) resulting in a substantial change in position.” Id. at 899.12

In most states, including Oregon, “ ‘[p]romissory estoppel’

is not a ‘cause of action’ in itself; rather it is a subset of a the-

ory of recovery based on a breach of contract and serves as

a substitute for consideration.” Rick Franklin Corp. v. State ex

rel. Dep’t of Transp., 140 P.3d 1136, 1140 n.5 (Or. Ct. App.

2006). “A promise binding under [section 90 of the Restate-

ment] is a contract . . . .” Restatement (Second) of Contracts

§ 90 cmt. d (emphasis added).

12

As we analyze here the reach of a federal statute that applies to all

fifty states, we discuss the law of contracts generally. However, Oregon

law applies to Barnes’ contract claim. Any conflict between this discus-

sion and Oregon law is to be resolved, on remand, in favor of Oregon law.

BARNES v. YAHOO!, INC. 5331

Thus, aside from consideration, ordinary contract principles

usually apply.13 Just as “[c]ontract law is designed to protect

the expectations of the contracting parties,” 1 Samuel Willis-

ton & Richard A. Lord, A Treatise on the Law of Contracts

§ 1.1 (4th ed. 2007), so is promissory estoppel. Similarly, the

majority rule in this country is that “any promise which is to

serve as the basis for a promissory estoppel claim or defense

[ ] be as clear and well defined as a promise that could serve

as an offer, or that otherwise might be sufficient to give rise

to a traditional contract supported by consideration.” 1 Willis-

ton & Lord, supra § 8.7; see also id. § 8.6 (“there must be a

promise, gratuitous at least in the sense that there is no con-

sideration to make it binding”).

This philosophy is reflected in the so-called “promissory

nature” of contract. Id. It is no small thing for courts to

enforce private bargains. The law justifies such intervention

only because the parties manifest, ex ante, their mutual desire

that each be able to call upon a judicial remedy if the other

should breach. Thus the Restatement defines a promise as “a

manifestation of intention to act or refrain from acting in a

specified way, so made as to justify a promisee in understand-

ing that a commitment has been made.” Restatement (Second)

of Contracts § 2(1) (emphasis added). “A promisor manifests

an intention if he believes or has reason to believe that the

promisee will infer that intention from his words or conduct.”

Id. § 2 cmt. b.

[13] Such, then, is the promise that promissory estoppel

requires: one that the promissor intends, actually or construc-

13

One area where promissory estoppel does vary ordinary contract prin-

ciples is in the damages. Although “full-scale enforcement by normal rem-

edies is often appropriate,” Restatement (Second) of Contracts § 90

comment d, some courts have awarded damages to compensate the prom-

isee for his expected benefit (ordinary contract damages), while others

have awarded damages to compensate the promisee for his detrimental

reliance, see Jackson v. Morse, 871 A.2d 47, 52-53 (N.H. 2005) (collect-

ing cases).

5332 BARNES v. YAHOO!, INC.

tively, to induce reliance on the part of the promisee. From

such intention courts infer the intention that the promise be

legally enforceable. Thus, when A sues B for breach of con-

tract, A is alleging that B violated an obligation that B

intended to be legally enforceable. In promissory estoppel

cases, courts simply infer that intention not from consider-

ation but from a promise that B could have foreseen would

induce A’s reliance.

B

Against this background, we inquire whether Barnes’ the-

ory of recovery under promissory estoppel would treat Yahoo

as a “publisher or speaker” under the Act.

[14] As we explained above, subsection 230(c)(1) pre-

cludes liability when the duty the plaintiff alleges the defen-

dant violated derives from the defendant’s status or conduct

as a publisher or speaker. In a promissory estoppel case, as in

any other contract case, the duty the defendant allegedly vio-

lated springs from a contract—an enforceable promise—not

from any non-contractual conduct or capacity of the defen-

dant. See GTE Corp., 347 F.3d at 662 (“Maybe [the] plaintiffs

would have a better argument that, by its contracts . . . , [the

defendant] assumed a duty to protect them.”). Barnes does not

seek to hold Yahoo liable as a publisher or speaker of third-

party content, but rather as the counter-party to a contract, as

a promisor who has breached.

How does this analysis differ from our discussion of liabil-

ity for the tort of negligent undertaking? See supra pp. at

5323-25. After all, even if Yahoo did make a promise, it

promised to take down third-party content from its website,

which is quintessential publisher conduct, just as what Yahoo

allegedly undertook to do consisted in publishing activity.

The difference is that the various torts we referred to above

each derive liability from behavior that is identical to publish-

ing or speaking: publishing defamatory material; publishing

BARNES v. YAHOO!, INC. 5333

material that inflicts emotional distress; or indeed attempting

to de-publish hurtful material but doing it badly. To undertake

a thing, within the meaning of the tort, is to do it.

Promising is different because it is not synonymous with

the performance of the action promised. That is, whereas one

cannot undertake to do something without simultaneously

doing it, one can, and often does, promise to do something

without actually doing it at the same time. Contract liability

here would come not from Yahoo’s publishing conduct, but

from Yahoo’s manifest intention to be legally obligated to do

something, which happens to be removal of material from

publication. Contract law treats the outwardly manifested

intention to create an expectation on the part of another as a

legally significant event. That event generates a legal duty

distinct from the conduct at hand, be it the conduct of a pub-

lisher, of a doctor, or of an overzealous uncle.14

Furthermore, a court cannot simply infer a promise from an

attempt to de-publish of the sort that might support tort liabil-

14

We are aware of some potentially countervailing history. Both promis-

sory estoppel and ordinary breach of contract actions evolved from the

common law writ of assumpsit. J. B. Ames, The History of Assumpsit, 2

Harv. L. Rev. 1, 2-4 (1888). Assumpsit originally sounded in tort, for only

formal contracts were enforceable as such until the refinement of the doc-

trine of consideration. Id. at 15-17; 1 Williston & Lord, supra § 1.16. The

tort of negligent undertaking is the vestige of this original tort; promissory

estoppel, too, retains some of the originally delictual nature of assumpsit.

Cf. Schafer v. Fraser, 290 P.2d at 205-06; 1 Williston & Lord, supra

§ 8.1. Indeed, “it is not uncommon under modern rules of pleading for a

plaintiff to assert one count based upon negligent failure to perform a gra-

tuitous undertaking [under Restatement (Second) of Torts section 323] and

another based upon promissory estoppel.” 1 Williston & Lord, supra

§ 8.1.

All the same, we believe the distinction we draw is sound. Though

promissory estoppel lurks on the sometimes blurry boundary between con-

tract and tort, its promissory character distinguishes it from tort. That char-

acter drives our analysis here and places promissory estoppel beyond the

reach of subsection 230(c)(1).

5334 BARNES v. YAHOO!, INC.

ity under section 323 of the Restatement (Second) of Torts.

For, as a matter of contract law, the promise must “be as clear

and well defined as a promise that could serve as an offer, or

that otherwise might be sufficient to give rise to a traditional

contract supported by consideration.” 1 Williston & Lord,

supra § 8.7. “The formation of a contract,” indeed, “requires

a meeting of the minds of the parties, a standard that is mea-

sured by the objective manifestations of intent by both parties

to bind themselves to an agreement.” Rick Franklin Corp.,

140 P.3d at 1140; see also Cosgrove v. Bartolotta, 150 F.3d

729, 733 (7th Cir. 1998) (noting that if “[a] promise [ ] is

vague and hedged about with conditions . . . . [the promisee]

cannot plead promissory estoppel.”). Thus a general monitor-

ing 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. See Workman v. United Parcel Serv. Inc., 234

F.3d 998, 1001 (7th Cir. 2000) (“[C]onsideration or reliance

is a necessary but not a sufficient condition of the enforceabil-

ity of a promise. Another necessary condition is that the

promise be worded consistently with its being intended to be

enforceable.”).

[15] One might also approach this question from the per-

spective of waiver.15 The objective intention to be bound by

a promise—which, again, promissory estoppel derives from a

promise that induces reasonably foreseeable, detrimental

reliance—also signifies the waiver of certain defenses. A

putative promisor might defend on grounds that show that the

contract was never formed (the lack of acceptance or a meet-

ing of the minds, for example) or that he could not have

intended as the evidence at first suggests he did (unconsciona-

bility, duress, or incapacity, for example). Such defenses go

15

Indeed, promissory estoppel developed in part out of cases in which

“[p]romises of future action . . . relate[d] to an intended abandonment of

an existing right.” 1 Williston & Lord, supra § 8.4.

BARNES v. YAHOO!, INC. 5335

to the integrity of the promise and the intention it signifies;

they usually cannot be waived by the agreement they purport

to undermine. But once a court concludes a promise is legally

enforceable according to contract law, it has implicitly con-

cluded that the promisor has manifestly intended that the

court enforce his promise. By so intending, he has agreed to

depart from the baseline rules (usually derived from tort or

statute) that govern the mine-run of relationships between

strangers. Subsection 230(c)(1) creates a baseline rule: no lia-

bility for publishing or speaking the content of other informa-

tion service providers. Insofar as Yahoo made a promise with

the constructive intent that it be enforceable, it has implicitly

agreed to an alteration in such baseline.

[16] Therefore, we conclude that, insofar as Barnes alleges

a breach of contract claim under the theory of promissory

estoppel, subsection 230(c)(1) of the Act does not preclude

her cause of action. Because we have only reviewed the affir-

mative defense that Yahoo raised in this appeal, we do not

reach the question whether Barnes has a viable contract claim

or whether Yahoo has an affirmative defense under subsection

230(c)(2) of the Act.

VI

For the foregoing reasons, we AFFIRM IN PART,

REVERSE IN PART, and REMAND for further proceedings.

Each party shall bear its own costs.