A win and a loss for Yahoo! in case over nude photos
Image via CrunchBase
In this California lawsuit against Yahoo! for hosting material, a ruling came last week which is both a win and a loss for the company. The Associated Press focuses on Yahoo!’s win:
The 9th U.S. Circuit Court of Appeals ruled that Internet service providers such as Yahoo, based in Sunnyvale, Calif., are generally protected from liability for negligence in publishing or posting material from a third party.
Cecilia Barnes had filed a lawsuit in 2005 in Portland claiming her ex-boyfriend not only posted nude photos taken of her without her knowledge or consent, he also created a fraudulent profile with personal information and posed as her in an online chat room to solicit sex.
via Yahoo Wins Round Before 9th Circuit in Battle Over Nude Photos via Law.com.
This is in line with the Communications Decency Act (a.k.a. Section 230(c)(1)) which I discussed at greater length last week. To protect the free flow of information, Congress has immunized content hosts from prosecution for the nasty things that they host.
However, an expectation of moral decency is starting to creep into rulings on these types of lawsuits, which are appearing with greater and greater frequency. This is the losing aspect of the case for Yahoo!:
Yahoo’s director of communications allegedly 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.”
However, two more months passed without word from Yahoo! Barnes filed suit in Oregon state court, and the profiles disappeared from Yahoo’s Web site shortly thereafter.
Barnes accused Yahoo! of being negligent in the undertaking of its services and breaking its promise to remove the indecent profiles…
[N]othing in the law stops Barnes from suing Yahoo! over its alleged broken promise to remove the profiles, the court ruled.
So… no legal recourse against someone for hosting nude photos of you. But a broken promise is actionable. There’s something wrong with this picture.
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I think it has been widely established that firms are not held liable for the posting of third parties. She went after the fat pockets of Yahoo! but her recourse is really with her ex-bf(f). The broken promise was a kind of verbal contract between her and Yahoo that could be actionable.
Yahoo’s certainly not liable thanks to 230(c)(1). What I think is interesting is that the courts are beginning to display a discomfort with the breadth of 230(c)(1) and are finding ways to rule around it to allow people recourse of some sort. In this case by focusing on the broken promise.