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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Cecilia Barnes v. Yahoo Inc.

2005 WL 3005602, Civ. No. 05-926-AA (D. Or., November 8, 2005)

Communications Decency Act Immunizes Yahoo From Tort Claims Arising Out Of Alleged Failure To Timely Remove Third Party Content

Court holds that the Communications  Decency Act, 47 U.S.C. § 230 ("CDA"), immunizes defendant Yahoo, Inc. ("Yahoo") from tort claims arising out of its alleged failure to timely honor promises to remove from Yahoo's web site objectionable content about plaintiff posted by a third party.  The content consisted of "profiles" contained both nude photos of plaintiff, and accurate contact information. 

Yahoo Employee Allegedly Promises To Remove Unauthorized Content 

Plaintiff's ex-boyfriend created and posted unauthorized "profiles" about plaintiff on Yahoo's website.  These profiles, which appeared to come from plaintiff herself, contained nude photos of plaintiff, as well as accurate contact information.  Plaintiff's ex-boyfriend, impersonating plaintiff, also solicited men for sex in various chat rooms.  The combination of these activities caused plaintiff to be solicited by various men, with understandably unpleasant results.

Plaintiff alleged that she contacted Yahoo on several occasions in an effort to have these profiles removed, without success.  According to plaintiff, approximately three months after the first of these contacts, plaintiff was contacted by a Yahoo representative who advised plaintiff that Yahoo would put a stop to these unauthorized profiles.  Unfortunately, according to the complaint, this did not occur in the ensuing three months, and, in fact, did not occur until plaintiff commenced suit.

Claim Barred By Communications Decency Act

Plaintiff's Complaint advanced a tort claim against Yahoo arising out of the commitment its employee allegedly made to have the offending materials removed.  By agreeing to act, the Complaint alleged, Yahoo assumed a duty to act, which duty it breached.

Yahoo argued that plaintiff's claim was barred by Section 230 of the Communications Decency Act.  The Court agreed, and dismissed the complaint.

Section 230 of the CDA provides that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Section 230 has been broadly construed by the courts to afford providers of interactive computer services such as Yahoo broad immunity from liability for content that such computer services make available on the web which is originated by others.  Such broad immunity encompasses tort claims arising out of Yahoo's alleged failure to honor its promise to remove third party content  from its site.  Such failure sought to hold Yahoo liable for a role in the publication of these third party statements, a liability the Court determined it could not impose under the CDA.  Said the Court:

Plaintiff's allegations similarly fall under the broad immunity provided internet servers by § 230.  Plaintiff alleges she was harmed by third-party content, and that the service provider [defendant] allegedly breached a common law or statutory duty to block, screen, remove, or otherwise edit that content.  Any such claim by plaintiff necessarily treats the service provider as "publisher" of the content and is therefore barred by § 230.  Plaintiff's argument that she seeks to hold defendant liable only for its alleged "failure to fulfill its promise to remove the unauthorized profiles," does not remove this case from the immunity provided by § 230.

In reaching this result, the Court relied on the Fourth Circuit's decision in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) cert. denied, 524 U.S. 937 (1998).  In Zeran, like the case at bar, the court held that plaintiff's claims that AOL failed to promptly honor commitments to remove content posted by third parties were barred by application of the CDA.

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