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.