Legal News

Yahoo! Fails Again to Stop Lawsuit Over Nude Photos

By Matthew Heller, Editor

An Oregon judge has refused to dismiss an unprecedented breach-of-contract lawsuit, finding that a woman can sue Yahoo! for breaking a promise to remove nude photos of her from its website.

U.S. District Judge Ann Aiken's decision is the latest milestone in a four-year-old case which she had previously dismissed in November 2005. An appeals court reinstated part of the case in May, finding Cecilia Barnes could proceed against Yahoo! on the theory that its promise to remove the photos amounted to an enforceable contract.

In Oregon, a ?promissory estoppel? claim requires:

(1) a promise; (2) which the promisor, as a reasonable person, could foresee would induce conduct of the kind which occurred; (3) actual reliance on the promise; (4) resulting in a substantial change in position.

Barnes' ex-boyfriend posted the photos without her consent in Yahoo!'s profiles section. The key evidence in her lawsuit is a March 29, 2005 phone conversation in which Yahoo! director of communications Mary Osako allegedly assured her that Yahoo! ?would put a stop to the unauthorized profiles depicting Plaintiff Barnes.?

According to an amended complaint filed in August, Osako had spoken earlier the same day to a local TV news reporter who was preparing a story about ?Yahoo's indifference to the dangers to which Plaintiff Barnes was exposed.?

After her conversation with Osako, Barnes told the reporter that ?Yahoo had promised to terminate the profiles.? But ?in breach of [that] promise,? the complaint says, Yahoo! ?failed to remove the unauthorized profiles ... until after the filing of this action.?

In denying Yahoo!'s motion to dismiss the promissory estoppel claim, Aiken ruled Dec. 8 that ?it is reasonable to conclude Osako's intention in calling the plaintiff was ultimately to have plaintiff call the reporter and, in effect, diffuse [sic] the story before it aired.?

The allegations, she continued, also ?lead to the reasonable and plausible inference that plaintiff  relied on defendant's promise by calling the reporter and informing him that there was no longer a news story worthy to air.?

Corporate spokespersons are, of course, capable of all sorts of devious manipulations. But it is unclear how Osako could have been so confident that Barnes would ?defuse? the story by simply calling the reporter -- unless she assumed the reporter wouldn't visit the website to check whether Yahoo! had, in fact, removed the photos.

Barnes, moreover, does not allege that she told the reporter the story was no longer newsworthy and has acknowledged in a brief that ?the amended complaint does not expressly allege that the unfavorable story was thereafter changed to a more favorable one because of Ms. Barnes?s call.?

As for the ?substantial change? element of the promissory estoppel claim, Aiken reached a muddled conclusion, saying Barnes' position could have

substantially changed in that the profiles remained on the web longer than they would have absent plaintiff's reliance [on Osako's promise]. Additionally, it is reasonable to assume that strangers viewed the profiles and subsequently contacted plaintiff after the profiles would have been removed by defendant (had plaintiff not called the reporter).

Yahoo! has argued that if Barnes had failed to get the profiles removed before Osako made her alleged promise, her reliance on the promise did not change her position. ?[T]he very premise of the Amended Complaint appears to be that Plaintiff was in the very same position after Yahoo!?s alleged promise as before,? it said.

Barnes' original complaint included a claim for negligence, but the 9th U.S. Circuit Court of Appeals said Yahoo! was immune under Section 230 of the Communications Decency Act.

By Matthew Heller
On Point

Full post as published by On Point News on December 23, 2009 (boomark / email).