Barnes v. Yahoo!, Inc.

• Decision Date: 07 May 2009
• Docket Number: No. 05-36189.,05-36189.
• Citation: 565 F.3d 560
• Parties: Cecilia L. BARNES, Plaintiff-Appellant, v. YAHOO!, INC., a Delaware Corp., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

565 F.3d 560

Cecilia L. BARNES, Plaintiff-Appellant, v. YAHOO!, INC., a Delaware Corp., Defendant-Appellee.

No. 05-36189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 14, 2008.

Filed May 7, 2009.

Thomas R. Rask, III, Kell, Alterman & Runstein LLP, Portland, OR, argued the cause for the appellant and filed briefs. Denise N. Gorrell, Kell, Alterman & Runstein LLP, Portland, OR, was also on the briefs.

Patrick J. Carome, Wilmer, Cutler, Pickering, Hale and Dorr LLP, Washington, DC, argued the cause for the appellee and filed the brief; Samir Jain and C. Colin Rushing, Wilmer, Cutler, Pickering, Hale and Dorr LLP, Washington, DC, and Reginald Davis and Eulonda Skyles, of Counsel for Yahoo!, Inc., Sunnyvale, CA, were also on the brief.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding. D.C. No. CV-05-00926-AA.

Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges.

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.

I

This case stems from a dangerous, cruel, and highly indecent 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 publicly 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 service, 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 content. 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 conducted 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 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. 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, 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 statements over to the division responsible for stopping unauthorized 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 Oregon 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 provide. 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 negligence, 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).

After Yahoo removed the action to federal court, it moved to dismiss the complaint under Federal Rule of Civil Procedure 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 district 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, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) ("Since qualified immunity is a defense, the burden of pleading it rests with the defendant."). Neither the parties nor the district court seem to have recognized this, but Yahoo ought to have asserted its affirmative 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 judgment 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 procedural niceties to which the parties are indifferent." GTE 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

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 computer 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 voluntary monitoring for offensive or obscene material." Carafano v. Metrosplash.com. Inc., 339 F.3d 1119, 1122 (9th Cir.2003).

Though we keep these goals, which the statutory language declares, in mind, we must closely hew to the text of the statutory bar on liability in construing its extent. The operative 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 service 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 service 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, lascivious, filthy, excessively violent, harassing, or otherwise 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 technical means to restrict access to material described in paragraph (1).

Section 230(c) has two parts. Yahoo relies exclusively on the first part, which bars courts from treating certain internet 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...