The U.S. Court of Appeals for the 9th Circuit recently handed down an interesting decision in Barnes v. Yahoo. While the facts underlying the dispute are disturbing, they are, unfortunately, all too common occurrences for hosts.
Ms. Barnes broke up with her boyfriend. Her boyfriend then decided to post indecent pictures of her on a Yahoo site, and solicit partners for Ms. Barnes in on-line chats, sending the partners to Ms. Barnes’ office and house. Ms. Barnes contacted Yahoo and followed Yahoo’s procedures to delete the profile, and take other administrative action. Yahoo dropped the ball several times, leaving the profile up in spite of repeated assurances that it would be deleted. Yahoo only deleted the profile when Ms. Barnes filed suit against the company.
While it is always gratifying to read new decisions reinforcing the conduit protections given to internet infrastructure providers by the CDA, there was an aspect to Ms. Barnes’ claim hosts should be aware of. One of Ms. Barnes’ claims was based on the fact that Yahoo repeatedly failed to follow its own policies.
While the Court of Appeals held that the CDA protected Yahoo in this case, its opinion specifically stated that the CDA does not confer blanket immunity on internet infrastructure providers for third party content. More particularly, if the injury to the plaintiff comes from the provider’s actions in a way that can be decoupled from the type of content, the CDA may not apply.
This illustrates a point I often make: the CDA is not a license to bury your head in the sand when third parties complain about content. You need to have a policy to address complaints about content, implement the policy as best you can, and follow the policy. I suspect we will begin to see an increasing number of suits that stem from either a host’s failure to even respond to content complaints, or, more likely, the host’s failure to follow through on its own policies.
The best advice I can give is to come up with policies that work for your business. When designing compliance policies, don’t simply outsource the work to an attorney or consultant who gives you a pretty policy without any relevance to your business. You need a policy that works with your business, not one that is designed to be implemented without reference to how you work. Spending some time on this process may help save you some litigation dollars (and pain) down the road.
