Are there limits to the Communications Decency Act

Fake consumer reviews mislead trusting readers, decrease market competition, and devalue the businesses and individuals the fake reviews attack. President Ronald Reagan popularized: the Russian proverb, trust but verify. Good advice is: don’t trust it if the website won’t vouch for it.

Many deceptive business owners choose to take a more sinister approach to winning over gullible consumers, rather than do business fairly and honestly, 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.

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. 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. Many times, they want to know whether they can sue the website companies, such as Zillow, FaceBook that provide the popular online platforms that make fake and false reviews so harmful.

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

Unfortunately, the Communications Decency Act (“CDA”) shields 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).

There are limitations. 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.

Could a service provider, which might normally be shielded by the CDA, lose its immunity from liability if it refused to remove content giving rise to a false advertising or unfair competition claim under the Lanham Act? Perhaps. This would happen only if the site does something more than refuse to take down the content. A website company, ISP, or other interactive computer service’s actions could undermine immunity under the CDA’s requirements.