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Yahoo! Immune From Suit For Failure To Remove Content; Watch That E-Mail, It May Be A Summons!
January 3, 2006
YAHOO! IMMUNE FROM SUIT FOR FAILURE TO REMOVE CONTENT
According to an Oregon federal court, an Internet Service Provider (ISP) is immune by statute not only from claims arising from publishing third party content, but it is also immune from liability for allegedly breaking a promise to remove unauthorized content in response to a complaint. The breach of contract claim is, fundamentally, based on the claim that the ISP failed to perform the screening duties of a publisher, and as such it is covered by the immunity provision of the Communications Decency Act ("CDA"). The CDA's immunity provision states 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."
The lawsuit came about when Cecilia Barnes contacted Yahoo! after learning that her former boyfriend had impersonated her by creating several unauthorized online profiles on the Yahoo! service. The profiles included nude pictures of Barnes, along with her contact information, and invited interested men to contact her at work. This prompted several unwelcome office visits.
Not surprisingly, Barnes complained to Yahoo! for several months. Although she eventually talked to a Yahoo! employee who promised that Yahoo! would stop the unauthorized use of the profiles, it apparently never did.
Barnes brought a lawsuit which did not seek damages for "publishing" the profiles, but rather for Yahoo's breach of its agreement to remove them. According to Barnes, that failure jeopardized her physical safety.
The court found, however, that the CDA's "broad immunity" protected Yahoo!. According to the court's decision, "Plaintiff's claim remains an effort to hold the service provider liable for failing to perform the duties of a publisher, such as screening or removing third-party content."
In an effort to promote the free exchange of information on the Internet, courts have tended to be very protective of ISP's. This case is just one more example.
WATCH THAT E-MAIL, IT MAY BE A SUMMONS!
A federal court in West Virginia has recently ruled that a plaintiff in a civil lawsuit may serve a summons on the defendant via E-mail, as long as the plaintiff demonstrates that e-mail is a reliable method for communicating with that defendant.
Allison Williams, the plaintiff in the case, petitioned the court to serve several Australian-based defendants by e-mail following her repeated, but unsuccessful efforts to serve process in person and by registered mail. Williams relied on a federal rule that permits service of summons "by other means not prohibited by international agreement as may be directed by the court."
In Williams' case, the court determined that 13 attempts of personal service, along with a failed attempt by registered mail, warranted the use of an alternate means of service.
In determining whether e-mail itself is a permitted alternative, the court first found that there was no international agreement between the United States and Australia precluding the use of e-mail. The court also noted that in this case, e-mail appeared to be a "reliable channel of communication" with these particular defendants, because the addresses the plaintiff intended to use were ones that appeared on established e-commerce sites operated by the defendants. The court also found that the proposed use of "PoS-e," a secure messaging technology to verify delivery of e-mail, "enhanc[es] the reliability of electronic service."
Just to be safe (and a little redundant) the court directed Williams to serve process upon the defendants by the concurrent use of e-mail, international registered mail, and international standard mail. E-mail continues to become more and more a "legitimate" method of communication, as this case demonstrates.
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This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.