A 48-year-old woman has sued Yahoo! on grounds the Internet portal broke a promise to remove nude images of her that were posted by her former boyfriend.
"Those kinds of allegations, if accurate, could result in potential exposure [to liability] for Yahoo!," First Amendment attorney Lawrence G. Walters told AVNOnlne.com about the case of Cecilia Barnes, who sued Yahoo for $3 million May 24 in Multnomah County Circuit Court.
Walters said the key to the case is how the court applies the Communications Decency Act, the federal law that indemnifies portals and Internet service providers against third-party wrongdoing like the kind Barnes alleges happened to her.
"The CDA protection is broad, but it's not infinite," he said. "If you have an ISP that is also acting intentionally to violate somebody's rights or cause damages to an individual, then individual liability could attach. If all this is true, [Yahoo!’s] inaction in this case could have tremendous ramifications for the rest of the [Internet portal and Internet service provider] industry and the Internet in general."
Barnes alleges that, in December, her former boyfriend, Randolph Russell, started posting unauthorized personal profiles of her that included the images plus her e-mail address and work telephone number. The suit also claims Russell started discussions in Yahoo! chat rooms while posing as her during which he steered men to the profiles. "Due to these profiles and online chats, unknown men would arrive without warning at plaintiff's work expecting to engage in sexual relations with her," documents filed with the court say.
One published report said Barnes got a restraining order against Russell earlier this year. The order barred him from contact with her, but a judge could not order Russell to stop putting up information about her online because state stalking law doesn't cover that kind of activity, according to Barnes' attorney, Thomas R. Rask III.
Yahoo! has declined to comment on the Barnes suit, saying the company does not comment on pending litigation.
"There can be situations in which an ISP is held responsible, and those exceptions have not been well-fleshed-out by the court, and this may be an opportunity for the court to do exactly that," Walters said. "If it can be shown Yahoo! was put on notice for potentially invasive material and failed to do anything about it intentionally, or added to the damages suffered by this individual, or left its role as an objective ISP through which communication passed without editing and assumed the role of a content provider, then liability could attach. And that's going to be the key issue here."
Barnes' filing also said she sent Yahoo! a letter in January, insisting she didn't create the profiles in question and wanted them taken down, but she got no response to either that request or two more submitted in February and March.
The filing went on to say Yahoo! communications director Mary Osako called Barnes after a local television station prepared a story about the problem and that Osako assured her Yahoo! would pull the images and profiles, a promise Barnes' filing said Yahoo! didn’t keep.
"Although defendant may have had no initial responsibility to act, once defendant, through its agent, undertook to act, defendant must do so reasonably," the filing said. "The defendant, in breach of the duty described above, negligently and carelessly failed to remove the unauthorized profiles and prohibit them from being posted again."
Federal law protects Internet portals and service providers from liability for third-party postings, but Rask was quoted as saying that once Yahoo! promised Barnes directly that the pictures and profiles would be purged, the portal had a legal obligation under Oregon law to keep the promise.
