An advisory circulated last month summarized the 9th Circuit’s May 7, 2009, decision in Barnes v. Yahoo!, 2009 WL 1232367, which reaffirmed the broad scope of immunity under Section 230 of the Communications Decency Act, but also allowed the plaintiff to proceed with her promissory estoppel claim against Yahoo! for allegedly failing to remove a profile that the plaintiff claimed she did not create after it promised to do so. (DWT Alert 05.12.09.)

On June 22, 2009, the 9th Circuit amended its decision in response to a request by defendant Yahoo! and its amici, removing language that had suggested that a defendant must assert Section 230 of the Communications Decency Act as an affirmative defense, as well as changing language that could have been interpreted as suggesting that the defense applied only to state law claims.


Plaintiff Cecilia Barnes claims that she asked Yahoo! to remove a profile that allegedly was created by an ex-boyfriend that included nude pictures of her. She claims that she relied on a promise by a Yahoo! representative to remove the profile, but sued when the profile was not taken down after several months. The 9th Circuit, construing her lawsuit to assert claims of gratuitous negligent undertaking and promissory estoppel, found that Section 230 barred the former but not the latter claim. In its original decision, the panel also chided Yahoo! for not asserting Section 230 as an affirmative defense, and the decision contained language that might have been misconstrued as implying that the federal statutory immunity applies only to state law claims.


The amended decision clarifies both issues. The 9th Circuit now has entirely removed the portion of its decision stating that Yahoo! should have asserted Section 230 as an affirmative defense which “does not by itself justify dismissal” by FRCP 12(b)(6) motion. It also clarified language describing the elements of the Section 230 defense that might have been interpreted as limiting it only to state law claims. In the amended opinion, the Court added a footnote stating that it had “limited” its discussion of the law to state law claims “because we deal in this case with state law claims only. We have held [Section 230’s] protection also extends to federal law causes of action. Because no federal law cause of action is present in this case, we need not decide how or whether our discussion of section 230(c)(1) would change in the face of such a federal claim.”

Both parties’ requests for rehearing and for rehearing en banc were denied.