On May 21, 2009, Public Citizen, the Center for Democracy and Technology, the Citizen Media Law Project, and the Electronic Frontier Foundation submitted an amicus brief in support of Yahoo's petition for rehearing in Barnes v. Yahoo!, which we previously discussed here. The brief urges the Ninth Circuit to modify dicta in its initial decision and make two corrections: (1) that a Section 230 defense can be raised on a motion to dismiss and (2) that Section 230 creates immunity from federal law as well as state law claims. The amicus brief is available here.
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In Barnes v. Yahoo, Inc., No. 05-36189 (9th Cir. May 7, 2009), the Ninth Circuit upheld a district court determination that CDA section 230 (47 USC § 230) barred a plaintiff's claim for negligent failure to remove indecent content as promised. The Court, however, also reversed the district court’s dismissal, holding that section 230 did not bar plaintiff's claim insofar as it alleged breach of contract based upon promissory estoppel. According to the Ninth Circuit, whether section 230's affirmative defense is available to an ISP turns on whether the cause of action "inherently requires the court to treat the defendant as the 'publisher or speaker' of the content provided by another." Here, because the negligence claim required the court to treat Yahoo as a publisher, it was barred. Plaintiff's promissory estoppel claim, however, treated Yahoo as counter-party to a contract, not as a publisher or speaker, and could therefore proceed.
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Priceline, Travelocity and Cingular Wireless each contracted with DirectRevenue LLC to deliver ads to consumers. To service its clients (including Priceline, Travelocity and Cingular Wireless), DR installed adware on millions of computers. The adware, which was undisclosed to users and difficult to remove, monitored the websites visited by the users and collected the information they typed into web forms. The NY AG filed a law suit alleging that DirectRevenue had violated New York consumer protection law, then pursued DirectRevenue's three major advertiser clients.
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