by Paul Alan Levy
We've previously blogged here about the important role that Section 230 of the Communications Decency Act plays in protecting consumer commentary on the Internet. Several commentators have discussed (for example, here and here) the recent decision of the Ninth Circuit in Barnes v. Yahoo!, which held that, although Section 230 protects Yahoo! from being be sued for negligent failure to remove fraudulent postings made in her name by Barnes’ former boyfriend, Yahoo! could be sued for promissory estoppel on the ground that one of its managers allegedly promised Barnes that the postings would be removed, but then failed to do so while Barnes relied on Yahoo! promise. The decision is carefully written to allow an ISP to avoid liability by hedging any assurances with an explicit denial that the promise is binding or enforceable. Most of the commentary has focused on this issue, reminding ISP’s (including bloggers who allow comments) to be careful about making unconditional promises to remove material.
A possible sleeper issue in the decision, however, appears early in the opinion (Part II, at pages 5317-5318), where the Ninth Circuit faults the district court for allowing Yahoo! to file a motion to dismiss under Rule 12(b)(6), which asserts that the complaint does not state a claim on which relief can be granted. The court notes that Section 230 immunity is an affirmative defense, and that affirmative defenses must be presented in an answer, followed by a motion for judgment on the pleadings. In the future, district courts are to treat section 230 as an affirmative defense.
This difference could be quite significant, because the filing of an answer triggers a series of deadlines that impose various obligations on the defendant to confer with the plaintiff and agree on discovery procedures, after which discovery can begin. Because Section 230 provides interactive service providers with an immunity from the burdens of litigation, and not just an immunity from being held liable, it has been important for defendants to be able to raise their immunity on an immediate motion. As we have discussed previously here, a robust section 230 defense plays a vital role in protecting consumers’ rights of comment because many companies try to suppress speech not by suing the speaker but by threatening to impose the costs of litigation on ISP’s unless they remove offending comments
The Ninth Circuit’s discussion of this point is odd, because affirmative defenses can be raised on a motion to dismiss under Rule 12(b)(6), without having to file an answer, if the existence of the defense is revealed by the complaint itself. The Ninth Circuit itself has repeatedly said, for example, that when a complaint reveals that the cause of action arose longer ago than the statute of limitations, a limitations defense may be raised on a motion to dismiss. And the fact that the defendant is an interactive service provider will ordinarily be apparent from the complaint.
The Ninth Circuit’s discussion of this point is dictum, and we can hope that, when controlling authority is cited, trial courts and other panels on the Court of Appeals will get it right.