Yahoo May Be Liable For Posting Sex Photos, Court Says

The online portal could be guilty of breach of contract for failing to remove unauthorized images.

K.C. Jones, Contributor

May 11, 2009

3 Min Read

Online service providers who promise to remove objectionable content had better follow through or they could be vulnerable to lawsuits.

That's the message coming out of a court in Oregon where a judge has decided to reinstate a woman's claim against Yahoo for breach of contract for failing to remove fake profiles with nude photos and solicitations for sex.

Cecilia Barnes sued Yahoo after an ex-boyfriend posted fake Yahoo profiles with nude photos of Barnes taken without her knowledge or consent; solicitations for sex; and her work phone number, e-mail address, and her physical address. Once men began to seek Barnes out for sex, she demanded that Yahoo remove the profiles, but Yahoo did not remove the material until Barnes sought help from local media and the courts, legal documents state.

Several of her lawyer's arguments attempting to hold the company responsible for the material failed, but one may hold up.

Last week, the Ninth U.S. Circuit Court of Appeals ruled that Barnes could sue Yahoo for promising to remove the "dangerous, cruel, and highly indecent" material, then failing to do so. A panel of judges ruled that Barnes' lawsuit could be reinstated under a breach-of-contract claim.

Barnes' lawyer, Thomas Rask of Kell, Alterman & Runstein, said that Barnes sent in a copy of her photo identification with a formal request for removal, called the company to follow up, and then faxed the information again. A customer service employee promised to personally deliver the request to those who remove unauthorized profiles and said they would take care of it, according to court documents.

The appeals court said the customer service employee's promise could be considered a contract. The appeals court sent the case back to district court for reconsideration. The district court must decide on the breach-of-contract claim. The decision could have implications for online service providers that otherwise enjoy protections under Section 230 of the Communications Decency Act.

Jeff Neuburger, a technology, media, and communications attorney at Proskauer Rose, said the decision is unlikely to significantly change the way online service providers do business, but it should make everyone hosting user-generated content more cautious. He said that publishers should review their Web sites to make sure they don't contain statements that can be viewed as promises and they should make sure their customer service representatives are well trained.

In the past, companies could rely on the Communications Decency Act to protect them against defamation claims, but the case, Barnes v. Yahoo, shows there are some claims that can get past protections against publisher liability, Neuburger said.

"I think that, for many years, people have been trying to suggest that the CDA was too broad in the way it was applied," he said during an interview Monday. "There have been dissenting decisions and minority decisions that have articulated that point of view, and this ruling is one of the few that has taken the viewpoint and put it into the majority."

Neuburger said that the decision is limited to circumstances in which an employee promised to take action. "This case says, 'If you say something like that you'd better follow through on it,' " he said. "If a company is careful and doesn't make that kind of promise, this doesn't affect them at all."

It does not erode the power of the Communications Decency Act, Neuburger added. "It may be a narrowing of the edges, but I think the heart of the CDA will remain intact," he said.

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