Out-Law / Your Daily Need-To-Know

Yahoo! has been sued for $3 million because it did not remove nude photos of a woman, posted on-line by her ex-boyfriend without permission. The claim appears to focus on a failure to honour an alleged promise to remove the pictures.

Cecilia Barnes, 48, from Oregon, claims that she discovered the postings when strange men began e-mailing her and turning up at her workplace expecting sex.

It turned out that her ex-boyfriend had posted nude photos of Ms Barnes in the profiles section of Yahoo!'s Member Directory and, pretending to be Ms Barnes in Yahoo! chat rooms, had encouraged men to visit the profile – where her work contact details were also posted.

Ms Barnes says that she asked Yahoo! to remove the postings on various occasions, but without success. According to TimesOnLine, she claims that she eventually received a verbal promise from Yahoo!'s director of communications, Mary Osako, that the postings would be removed. They were not, and Ms Barnes sued.

US commentators suggest that her best chance of success in the action will be to rely on the broken promise, and not Yahoo!'s overall failure to remove the pictures, due to broad protections for hosts in the US.

In the US, ISPs such as Yahoo! are generally immune from liability under a provision in the Communications Decency Act which grants immunity from suit to those who provide material on the internet that was written by others. The Act states:

"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."

While most of the Communications Decency Act has been struck down as unconstitutional, this provision survives.

If this happened in the UK...

It is not necessarily easier to deal with these circumstances in the UK.

The best argument might be that there is defamation in the posting of a photo accompanied by disparaging statements that purport to come from the subject. Viewed in the context of accompanying comments that invite sex, it should be possible to convince a court that the subject's reputation would be lowered, as a legal test puts it, in the minds of ordinary and reasonable people and that defamation exists.

When defamatory third party material appears on a web site that is not approved or monitored by the host, the host is usually protected by laws that operate in a similar way to the US provisions - until the host is made aware of the unlawful material. At that point, the host must act quickly, either to remove the unlawful content or to disable access to it. If the host fails to act expeditiously, the protection is lost and the host becomes liable.

However, in the absence of the postings that encourage others to contact the subject for sex, it is far from certain that a defamation claim would succeed, albeit generally easier to sue for defamation in the UK than in the US. A naked picture taken with consent is unlikely to amount to defamation in the UK on its own, unless its context incorrectly portrays the subject as, for example, promiscuous.

Depending on the circumstances, there may also be a data protection claim. In 2003, the European Court of Justice ruled against a woman who identified and included information about fellow church volunteers on her web site without consent from the subjects. But the data protection argument may stand a better chance against the individual who made the posting to a public web site than against the host – and revenge is unlikely to be the subject's primary concern.

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