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Lawsuit 15 6 1 GLEN A. SMITH (State Bar No. 106341) MEGAN E. GRAY (State Bar No. 181204) 2 GREGORY L. VINSON (State Bar No. 190959) BAKER & HOSTETLER LLP 3 600 Wilshire Boulevard Los Angeles, California 90017-3212 4 (213) 624-2400 5 Attorneys for Plaintiff JOHN DOE, also known as Aquacool_2000 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN DOE, also known as Case No.: AQUACOOL_2000, 12 COMPLAINT FOR: Plaintiff, 13 1) Invasion of Privacy v. 2) Breach of Contract 14 3) Negligent Misrepresentation YAHOO! Inc., a Delaware corporation, and 4) Unfair Competition and 15 DOES 1-9, inclusive, False Advertising 16 Defendants. 17 18 Aquacool_2000 alleges as follows: 19 1. Plaintiff John Doe, also known as Aquacool_2000, is a resident of the state of 20 Ohio. This action alleges violations of Aquacool_2000's privacy interest, including improper 21 disclosure of information relevant to his identity to a third party by Defendant Yahoo! 22 Aquacool_2000 brings this cause of action as John Doe in order to preclude further damage to his 23 privacy interests. 24 2. Upon information and belief, Defendant Yahoo!, Inc. is a Delaware 25 corporation with its principal place of business within the state of California. 26 3. Aquacool_2000 is unaware of the true names and capacities of defendants 27 sued herein as DOES 1-9 inclusive, and therefore sues such DOE defendants by such fictitious 28 ________________________________________________________________________________________________ Macintosh HD:Desktop Folder:Attach:Complaint-meg.doc 1 names. Aquacool_2000 will amend his complaint to allege the true names and capacities as and 2 when they have been ascertained. Upon information and belief, each such fictitiously named 3 defendant is in some way responsible for the events or occurrences referred to herein. 4 4. Upon information and belief, each of the defendants was the agent, servant 5 and/or employee of each of the remaining defendants and was acting within the purpose and scope of 6 said agency, service and/or employment and with the permission/consent of its co-defendants. 7 5. This is a civil action arising under the statutory and common law of the State 8 of California. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1332 in that 9 Plaintiff and defendant are citizens of different states and the amount in controversy exceeds the 10 value of $75,000, exclusive of interest and costs. This Court has personal jurisdiction over 11 defendants in that they are doing business in the State of California and they are committing the acts 12 alleged in this State. Venue for this action is proper in the Central District pursuant to 28 U.S.C. 13 §1391(a) in that defendants are subject to the personal jurisdiction of this judicial district. 14 GENERAL ALLEGATIONS OF LAWSUIT 15 6. Yahoo! is a portal on the World Wide Web that provides a variety of services 16 to individuals and companies. Among the services provided by Yahoo! is a service called the 17 message boards. Using the message-board service, Yahoo! members can submit (or post) comments 18 and opinions about publicly traded companies. Yahoo! invites its members to "discuss the future 19 prospects of the company and share information about it with others" in this forum. Every publicly 20 owned company has a message board devoted to it, set up and fostered by Yahoo! 21 7. Yahoo! prompts its members to "select an identity" before posting comments 22 and, in fact, most comments are posted by individuals using a pseudonym or nome de plume. The 23 vast majority of the comments posted on these message boards are colloquial in tone, opinionated, 24 speculative, and frequently caustic and derogatory. The comments tend to resemble informal spoken 25 conversation more than formal written communication, and anyone who frequents the message 26 boards interprets what is posted accordingly. The Yahoo! message boards are a forum where the 27 common man may voice his opinion, however silly or brilliant it may be. Discussion of information 28 -2- ________________________________________________________________________________________________ Macintosh HD:Desktop Folder:Attach:Complaint-meg.doc 1 about the company and its management is common, but so too is idle speculation about its future 2 stock price, random musings about its prospects, and even "off-topic" trivialities. On the 3 AnswerThink message board, for example, discussion has recently focused on guitars. 4 8. The message boards also give users and the subject a unique opportunity to 5 reply to speech on the message boards that they believe to be wrong or defamatory. A message- 6 board user can promptly post a reply to an objectionable posting and, in many cases, the reply will 7 reach the exact audience that read the initial posting. 8 9. Yahoo! is aware of the nature of the comments posted on the message boards 9 and has taken efforts to advise members that the message boards are "not connected in any way" 10 with the company being discussed. Yahoo! further advises its members that "any messages are 11 solely the opinion and responsibility of the poster." 12 10. These unique features of the message boards suggest that defamation law 13 should be applied carefully to these communications, lest the threat of being held liable for 14 defamation chills users from engaging in the spirited discussions encouraged under state and federal 15 constitutions. In fact, the United States Supreme Court has described the Internet as a "vast 16 democratic fora" and has affirmed another court decision describing the Internet as "the most 17 participatory form of mass speech yet developed and is entitled to the highest protection." Reno v. 18 ACLU, 521 U.S. 844 (1997). 19 11. The United States and California constitutions protect the right to anonymous 20 speech and the right to free speech. The United States Supreme Court, in McIntyre v. Ohio Elections 21 Commission, 514 U.S. 334 (1995), firmly held that the First Amendment protects anonymous 22 speech. The Court gave an impressive listing of important anonymous contributors ranging from 23 Shakespeare to The Federalist Papers. The California constitution has even greater protections for 24 free speech and privacy. See Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538 (1999). 25 While these constitutional rights are not absolute, they may not be disregarded merely on the filing 26 of a lawsuit. 27 28 -3- ________________________________________________________________________________________________ Macintosh HD:Desktop Folder:Attach:Complaint-meg.doc 1 12. In order to become a member of Yahoo! and to post comments on the message 2 boards, one is required to disclose certain personal information to Yahoo!, including the user's zip 3 code, gender, occupation, industry, and interests. Yahoo! also collects information about its 4 members that would allow an interested party to trace the source of any particular comment posted 5 on the message boards to the poster's personal computer. In particular, Yahoo! determines and saves 6 the internet protocol (IP) address for every person that posts a message to the message boards every 7 time that a post is made. On information and belief, Yahoo! does not destroy such personally 8 identifying information for many months or years. 9 13. Yahoo! promulgates Terms of Service and a Privacy Policy on its website that 10 purport to govern the relationship between Yahoo! and its members. The Privacy Policy is 11 incorporated by reference into the Terms of Service. 12 14. The first sentence of the Yahoo! Privacy Policy proclaims, "Yahoo! is 13 committed to safeguarding your privacy online." 14 15. Yahoo!'s Privacy Policy further states, in relevant part, "This Privacy Policy 15 will let you know: what personally identifiable information is being collected from you; how your 16 information is used; who is collecting your information; with whom your information may be 17 shared; what choices are available to you regarding collection, use, and distribution of your 18 information," etc. 19 16. More specific language later in the Privacy Policy provides that members will 20 be notified "at the time of data collection or transfer if your data will be shared with a third party and 21 you will always have the option of not permitting the transfer." The Privacy Policy further provides 22 that members' personal information may be disclosed "when we [Yahoo!] believe in good faith that 23 the law requires it . ." 24 17. The Privacy Policy additionally provides, "Knowing that you use certain 25 services or features may help us to offer you better and more relevant content . .But as with all 26 personally identifiable information, we do not make this available to any third parties without your 27 permission." 28 -4- ________________________________________________________________________________________________ Macintosh HD:Desktop Folder:Attach:Complaint-meg.doc 1 18. In its Terms of Service, Yahoo! informs its members that "Notices to you may 2 be made via either email or regular mail," thereby creating a reasonable expectation in its members 3 that Yahoo! will, in fact, provide notice of information important to its members. 4 19. The Privacy Policy further represents that Yahoo! is certified by TRUSTe, 5 which is a third-party group supposedly regulating and reviewing certified-companies' privacy 6 practices. By featuring the TRUSTe certification mark throughout its website, Yahoo! thereby 7 creates the reasonable expectation that Yahoo! maintains strict procedures and requirements with 8 respect to Yahoo!'s disclosure of members' personal information. At a minimum, Yahoo! 9 purposefully gives members the impression that Yahoo! is as protective of members' privacy as the 10 member himself, and that Yahoo! would not disregard members' privacy interests without taking all 11 reasonable steps to safeguard it or giving the opportunity to the member to safeguard it.
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