Defamatory messages appearing in public places aren't just an Internet Age affliction; consider the following case from 1952.

A woman received a phone call from a man who sought to arrange an unconventional, but apparently amorous, liaison. After being rebuffed, the man informed the woman that her phone number appeared on the bathroom wall of a local bar along with writing indicating that she "was an unchaste

woman who indulged in illicit amatory ventures." The woman’s husband promptly called the bartender and demanded he remove the defamatory graffito, which the bartender said he would do when he got around to it. Shortly thereafter, the husband marched to the bar, policeman in tow, and discovered the offending scrawl still gracing the wall. He defended his wife’s honor by suing the

bar’s owner.

That case history appeared in yesterday's Ninth Circuit decision of Barnes v. Yahoo (PDF), a case that was in many ways identical to the 1952 barroom graffiti incident. The decision itself was written by a judge with a flair for the literary and the dramatic; it makes a great read. How many court decisions open with this line? "This case stems from a dangerous, cruel, and highly indecent use of the Internet for the apparent purpose of revenge."

A revenge tragedy for the Internet age

Back in 2004, Cecilia Barnes broke up with her boyfriend. He did not take it well. Soon after the breakup, he created numerous fake Yahoo profiles for Barnes, then entered Yahoo chat rooms posing as Barnes and told men that he met there to check out the fake profiles. (You can see where this is going, can't you?)

The fake profiles contained "some kind of open sexual solicitation," and anonymous men soon began "peppering [Barnes'] office with e-mails, phone calls, and personal visits, all in the expectation of sex."

Definitely not cool. But this case isn't about the boyfriend's behavior; it's about Yahoo. When Barnes found out what happened, she contacted Yahoo, sent them signed letters and copies of her photo ID (as Yahoo requires), asking the profiles to be removed (which Yahoo does). In this case, nothing happened.

Barnes sent at least four letters to Yahoo. When the story was about to break on local news, a Yahoo PR person called Barnes, asked for the information again, and said that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care it." But they did not.

So Barnes sued Yahoo, which finally removed the profiles after receiving the suit. Yahoo said that it had immunity from prosecution under section 230 of the CDA, which protects online service providers from being considered the "speaker" or "publisher" of third-party information posted by users. Yahoo should have acted more quickly, of course, but the company claimed that there was no basis in law for the suit.

Barnes countered that once the Yahoo PR person had promised to have the information removed, Yahoo was negligent in not doing so.

The judges raised the 1952 case, wondering if there might be a situation in which someone who provides public services might be considered the "publisher" of something if they refuse to take it down for a long enough period of time. But in the end, the court ruled that the case was barred in its current form by the CDA.

Some legal bloggers are already calling this a "great case" and a "nice win" for online publishers, though the court did make clear that Barnes can recast the suit to focus solely on Yahoo's promise to her.

Bottom line: Yahoo had no real responsibility to remove the profiles, though once it promised to do so, it may have created a contract-based claim that could result in liability.

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