More About Barnes v. Yahoo

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I blogged about the case previously here. Below is an excerpt from the Ninth Circuit’s holding in Barnes v. Yahoo at page 5316 that gives a quick overview of the facts:

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. During 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 statements over to the division responsible for stopping unauthorized 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 Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return.

So Yahoo headed off a negative news report about the situation by promising to take down the profiles that were causing men to show up at the Plaintiff’s place of employment and demanding to have sex with her. Yahoo got a good PR benefit for making this representation but did not actually do anything it promised.

The Supposedly Liberal Dood reaction to the case is that unless overruled, it will cause ISPs to issue directives to their employees not to promise to remove material or even to inquire into whether the material should be removed. Well, guess what: every company that is already familiar with Section 230 almost certainly does this already. Yahoo felt free not only not to take action, but to lie and say that it would take action for PR purposes, and then not take action, and the trial court said this was covered by 230 immunity. The Plaintiff thought help was coming so probably didn’t take protective actions she otherwise might have. She was worse off then she would have been if Yahoo had just told her to go and pound sand when she asked for help, and the Ninth Circuit decided that Yahoo should have to answer for this in court. This doesn’t mean Yahoo will be held liable necessarily, just that Barnes gets a chance to prove that what Yahoo did was wrong as a matter of law.

Eric Goldman has a series of blog posts that document the aftermath of the decision here, here and here. In brief, both Barnes and Yahoo have asked for a rehearing. According to Goldman, Barnes wants the court to “conclude that once Yahoo! had voluntarily assumed a publisher’s responsibility to remove the postings, the responsibility is enforceable by any lawfully applicable remedy.”

Yahoo’s position (and this is my summary, not Goldman’s) is that it can do anything it wants including lie, with other impunity, courtesy of Section 230. The big guns of the public interest world are lining up behind Yahoo, because of course if Yahoo isn’t free to anything or nothing when women are viciously and serially harassed through its portals, both the Internet and First Amendment are doomed. What Yahoo is truly concerned about is avoiding labor costs it would incur if it had to respond to requests for help from victimized women like Barnes. Yahoo fears the expense because it knows there are so many of them.

The online harassment of Barnes and other women is also independently profitable if it draws clicks and eyeballs from interested observers, which translates into advertising revenues ISPs want to continue to enjoy as well. Anyone doubt for a second that the harassing posts about Barnes triggered pornography ads, and that men interested in violent sex with Barnes were also interested in porn?

The ISPs have so much money and influence, the possibility that Section 230 will be amended to require ISPs to do anything helpful for women like Barnes, including simply not lie to them, is slim. The only hope Barnes and women like her have is the courts. That’s why this case is drawing so much heat and light. I expect Barnes will lose, because women’s lives are never as important as money, such as the profits an ISP like Yahoo reaps when it can feature even illegal content like child pornography without fear of legal reprisals or responsibility.

–Ann Bartow

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One Response to More About Barnes v. Yahoo

  1. Nancy says:

    Is it really that burdensome for Yahoo to take down fake profiles with naked pictures after the plaintiff submitted verification of her identity? I think the “public interest” groups are not actually looking out for the consumers here– at least not those consumers who are women or men who care about basic human decency. The “liberal doods” that Ann refers to make it sound as though if we don’t keep this very broad, blanket definition of 230 (most of which is due to overly broad court interpretations and NOT something contained within the statute itself), then Internet innovation and speech will be forever stifled. But will it? Just because we require a website to take down naked pictures and profiles posted by someone other than the subject (esp.when doing so is against their own policy)? And if so, it seems that is the kind of “speech” and “innovation” that are not socially beneficial and should not be encouraged. (And yes, women are more affected by this than men – how many cases involve naked pictures of men posted by their ex girlfriends?) The situation here does not call for Yahoo! to make a tough legal determination about something like defamation. Is the slope really all that slippery here? Or is it that we are trying to diminish the very real harm that was suffered by the plaintiff? How is it possible that we think the extra burden on a large company like Yahoo (if it is even noteworthy at all) outweighs the burden/harm to the plaintiff – a private individual – who is being exposed in this very humiliating and destructive manner? Have we really bought into all this BS that benefits large web companies to the detriment of civil society?

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