Barnes v. Yahoo!, Inc.

Issue: Whether § 230 bars a promissory estoppel claim against Yahoo! arising from a Yahoo! employee's specific oral promise to remove unauthorized, harassing profiles — as distinct from a negligence claim based on Yahoo!'s failure to monitor its platform.

After Cecilia Barnes broke off a relationship with her boyfriend, he created fake profiles of her on Yahoo!'s personal ads service without her knowledge. The profiles included nude photographs taken without her consent, her work address and phone number, and what appeared to be an open invitation for sexual contact. Men she did not know began sending emails, calling her office, and showing up in person expecting sex. Barnes mailed Yahoo! multiple times requesting removal. Yahoo! did not respond. The following month, a local news program prepared to run a story about the incident. The day before the broadcast, Yahoo!'s Director of Communications, a Ms. Osako, called Barnes, asked her to re-fax her prior statements, and told her: "I will personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." Relying on this assurance, Barnes took no further action. Two months passed without word from Yahoo!. Barnes filed suit in Oregon state court. Shortly after suit was filed, the profiles disappeared. The Ninth Circuit affirmed dismissal of Barnes's negligence claim — it was effectively a claim that Yahoo! failed to monitor and remove content, which is a publisher function barred by § 230. But the court reversed as to promissory estoppel. Judge O'Scannlain's opinion held that the promissory estoppel claim did not treat Yahoo! as the publisher or speaker of the harmful profiles; it arose instead from Yahoo!'s own first-party conduct — the promise Osako made and Yahoo! then failed to honor. That promise was the independently actionable conduct, not Yahoo!'s editorial decisions about user-generated content.

The foundational Ninth Circuit authority establishing that § 230 does not bar claims arising from a platform's own first-party conduct and representations, as opposed to claims that hold the platform responsible for third-party content. Barnes drew the line between publisher liability (barred) and independent duty arising from a platform's own words and conduct (not barred). The case is the direct ancestor of Estate of Bride v. Yolo Technologies, in which the Ninth Circuit extended this reasoning to promises in terms of service.