Several days ago, I posted about a Ninth Circuit decision, Barnes v. Yahoo!, holding that an alleged promise by a Yahoo! employee to remove false profiles of the plaintiff, posted by her ex-boyfriend, could be enforced against Yahoo! notwithstanding the immunity provisions of section 230 of the Communications Decency Act. The decision also included very troubling dicta stating that because section 230 immunity is a defense, it cannot be raised on a motion to dismiss but must rather be put forward in an answer, followed by a motion for judgment on the pleadings.
I am pleased to report that today Yahoo! filed a petition for rehearing that does not seek to overturn the remand for further proceedings on Barnes’ promissory estoppel claim, but addressed only the Court of Appeals dictum about which I blogged. Public Citizen has filed an amicus brief (joined by Center for Democracy and Technology, Citizen Media Law Project, and Electronic Frontier Foundation) explaining the practical impact that the dictum is likely to have on free speech online. We also addressed a second error in the court’s reasoning, which could too easily be read as limiting Section 230’s immunity to eliminate protection against federal law claims. (I am grateful to Eric Goldman for pointing out this subtle dicta in the court’s opinion). As our brief explains, both sets of dicta are squarely contrary to well established precedent in the Ninth Circuit and elsewhere.
In the course of preparing the amicus brief, I had occasion to read the complaint and listen to the oral argument, which is posted on the Ninth Circuit’s web site. There is no question that the immunity defense is apparent from the
face of the complaint in this case, and Yahoo!'s counsel explained that
point thoroughly. Judge Callahan questioned both sides about the defense / motion to dismiss issue; both sides told her it was a defense that could be raised; but neither side had anticipated the question and did not have citations ready for the well-accepted rule that a defense shown on the face of a complaint can be raised on a motion to dismiss. The Court of Appeals then decided that issue, apparently also without doing its own research. But in the Ninth Circuit, even dicta become binding precedent if it is set forth in a "considered statement."
The complaint and argument also revealed that Barnes’ contention is that Yahoo!’s promise to take down her profiles came on the eve of a television report about her situation, after reporters contacted Yahoo!. Barnes contends that, in an effort to avoid negative press, Yahoo! contacted her “on its own” to promise to take the material down, and that even though she could not have sued Yahoo!, there were other steps that she could have taken to obtain redress. For example, she claims that, at Yahoo!’s direction, she did not testify before the Oregon Legislature about what had happened to her, because Yahoo! told her it would take the material down. Barnes also seems to suggest that she would have worked the press harder had she not relied on Yahoo!'s promise. If Barnes proves such facts, one can see a real case here.