What are the Communications Decency Act’s Limits?

Like fake news stories, fake consumer reviews mislead trusting readers, decrease market competition, and devalue the businesses and individuals the fake reviews attack. You’ve heard the Russian proverb President Ronald Reagan popularized: trust but verify. When it comes to consumer review websites, the best advice might be: if you can’t verify it, you can’t trust it. Better advice might be: don’t trust it if the website won’t vouch for it.

Rather than do business fairly and honestly, many deceptive business owners choose to take a more sinister approach to winning over gullible consumers. They publish (or pay others to publish) false and disparaging reviews about their competitors on popular consumer reporting websites that don’t bother to check the facts their users publish.

More and more individuals and businesses who are harmed by false reviews are exploring their options for holding the responsible parties accountable and setting the record straight. Our law firm receives numerous calls each month from business owners wanting to know what they can do when false and negative information is harming their business. They often want to know whether they can sue the website companies, such as Yelp or TripAdvisor, that provide the popular online platforms that make fake and false reviews so harmful.

If popular consumer review websites did not invest so much money in making sure their webpages ranked high in search engine search results, the fake reviews people publish through them would do less harm. But these websites profit from ensuring their webpages appear on the first few pages of Google and Bing search results. The higher they rank in those search results, the more people visit them. When people visit them, websites can generate more profits from businesses who pay for their online advertising services.

The Communications Decency Act (“CDA”) can shield Internet Service Providers (“ISP”) and consumer review websites against being held liable for the content their users create and publish through them. The content might only be accessible thanks to an ISP’s services or because a website, forum, blog, or listserv agrees to publish it. But simply providing a platform for it does not mean the ISP or website can be held directly responsible for the harms caused by the fake or false reviews it broadcasts.

Under the CDA’s Section 230, “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.” An interactive computer service is any service that “provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2).

Most websites fit the definition because their site “enables computer access by multiple users to a computer server, namely, the server that hosts the web site.” Universal Commc’ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007).

This provision protects interactive computer services against liability for claims “under any State or local law that [are] inconsistent with this section.”

There are limitations on this broad immunity, however. Certain claims, like intellectual property claims, are not barred. Section 230(e)(2) of the CDA provides that the CDA should not “be construed to limit or expand any law pertaining to intellectual property.”

Among the more well-known intellectual property laws is the Lanham Act, or Trademark Act. The Lanham Act governs trademarks used in interstate commerce and provides causes of action for trademark infringement, dilution of a famous mark, and certain other forms of unfair competition, including false advertising.

What if a service provider, such as a consumer review website like Yelp, refused to remove content giving rise to a false advertising or unfair competition claim under the Lanham Act? Could that service, which might normally be shielded by the CDA, lose its immunity from liability?

The answer is maybe, but only if the site does something more than refuse to take down the content.

A website company, ISP, or other interactive computer service could act in a way that undermines immunity under one or more of the CDA’s requirements.

The CDA protects an (1) “interactive computer service” from liability if the liability (2) is based on the service having acted as a “publisher or speaker” and (3) the content at issue was “provided by another information content provider.” F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) (quoting CDA § 230(c)(1)).

Under the CDA, an “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3).

In theory, a website could become a content provider if it were responsible, in part or in whole, for developing the offending content.

For example, in 2009, the Tenth Circuit Court of Appeals found that a website operator (Accusearch Inc.) was both an interactive computer service and an information content provider. and therefore was “not immune from liability arising from publication of that content.” Accusearch Inc., 570 F.3d at 1199.

In Accusearch, the Court reasoned that under the CDA’s very broad definition, Accusearch had “developed” content when “confidential telephone information was exposed to the public view” after being posted on a website the company controlled. Accusearch Inc., 570 F.3d at 1198.

It also found Accusearch was “responsible” for the development of the content because it acted as something more than a “neutral conduit for that content.” Id. at 1199. The Court stated, “We therefore conclude that a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content.” Id. This line of reasoning came to be thought of as the “encouragement test.”

According to the Court, Accusearch also “solicited requests for…confidential information and then paid researchers to obtain it. It knowingly sought to transform virtually unknown information into a publicly available commodity. And…Accusearch knew that its researchers were obtaining that information through fraud or illegality.”

But in 2014 in an appellate case involving the gossip site The Dirty, the Sixth Circuit Court of Appeals rejected the “encouragement test” for losing CDA immunity and instead adopted the “material contribution” test. It held CDA immunity could be lost if a service provider “materially contributed” to the offensiveness of the content at issue but that simply choosing which posts to publish or not to publish was not enough. Refusing to remove unlawful content was not a “material contribution.” Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 416-17 (6th Cir. 2014).

In 2016, the Ninth Circuit Court of Appeals found the review site Yelp.com was not liable for claims arising out of negative business reviews someone published or caused to be published on Yelp. That Court affirmed the test “that a website may lose immunity under the CDA by making a material contribution to the creation or development of content” but found Yelp’s refusal to remove offending content and its use of a rating system did not meet the standard for losing CDA immunity.

If a website hosts information that could give rise to claims for defamation, invasion of privacy, false advertising or other unfair competition claims, it may be able to refuse to remove the content at an individual’s request without liability.

A refusal to remove content, without something more, likely would not meet either the “material contribution” or “encouragement” tests for determining whether a service loses its immunity under the CDA.

But, within the limits of the CDA, courts could still have other options available. In 2016, a California Court of Appeal, in a case involving (but not against) Yelp, found the CDA did not prohibit a court from ordering Yelp to remove unlawful content one of its users published. Yelp argued it could not be ordered to take down the posts (especially when it was not a party to the case), but the Court of Appeal disagreed. Hassell v. Bird, 247 Cal. App. 4th 1336, 203 Cal. Rptr. 3d 203 (2016). The Supreme Court of California has agreed to hear Yelp’s petition challenging the decision but has not decided the case yet.

Suing the consumer review websites that host unlawful content is risky and the outcome of any litigation is never certain. What is certain is that anyone trying to hold a review site or other service accountable for content others publish or distribute through the service still faces a high bar.

A consultation with an experienced attorney can help an injured party identify the available options and understand the risks of each course of action.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2017. All rights reserved.

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