The CDA – A Bulletproof Vest for Internet Service Providers?

Posted by Cyberbear on April 9, 2017 in CDA, Internet, Judicial Decisions |

Posted By: Stephen Timmer

Super Mario’s Pizzeria is celebrating two years in business! His business is in highly competitive area surrounded by other, established pizza places like Luigi’s Lovely Pizza Pies. Mario prides himself on customer satisfaction, whether patrons dine in or if they order take out through his mobile phone app (powered, ironically, by a video game company). He’s even snagged some prime catering gigs from businesses, like Sonic the hedge fund guy. Then one day a less than flattering review shows up on a review site for local businesses called “Holla!” under the name of “The Princess”. Holla, to protect anonymity of its users, allows them to use pseudonyms to protect against any reprisals and to elicit more candid comments. The Princess talks about how she got a fly in her Turtle Soup and how she sat at her table for twenty minutes before someone came over to take her order. Out of five stars she only gave Super Mario’s a half of a star. This review devastated both his dine in and his take out business. Mario has a pretty good memory and he never recalled anybody ever coming in and having an experience like that. Mario starts to think that Holla has made up the review and is favoring Luigi’s pizza joint, based on the lack of any negative reviews about his place. When Mario requests to Holla that they take that defamatory review down, they tell him to go stuff himself down a pipe. Knowing that the review has got to go, Mario decides to take Holla to court to compel them to take the review down. Unfortunately the court gave his case a game over when they told him that Holla cannot be held liable for the comments of its users, because they were not the one’s that posted it. Disheartened, Mario starts to consider a career in the plumbing business.

Unfortunately, a scenario with an infamous review site actually happened to a local service business in Seattle, where an anonymous review put dent in his business. Online service providers have been granted a seemingly bulletproof status thanks to legislation from Congress. While it has typically been a losing battle to challenge these providers in court over their content, recent developments in the United States Court of Appeals for Ninth Circuit  could give businesses an extra life against online providers and their users’ content. Unfortunately, this light at the end of the tunnel for merchants could prove to have dire constitutional consequences for the users of the online services.

What is the Section 230 of the Communications Decency Act?

In response to the stifling effect that the Communications Decency Act of 1996 had on free speech, Congress passed what is now known as section 230 (47 U.S.C. § 230(c)) into the rest of the act. Some of the text of the law 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.” What this statement means is that I can go onto a website that has a forum for commenting about movies and post a scathing opinion about the newest movie featuring morphing robots from outer space. If the director thinks the comment is too defamatory and sues the website operator to force him to take my comment down, the operator will not be required to do so, because they are not the publisher of the comment. In the second part of 230(c), the law specifies what online service providers cannot be held liable for. It states that a provider will not be held liable for good faith actions to restrict access to material that is deemed offensive or action taken to enable other content providers the means to restrict access to material. That part of 230(c) allows online service providers Carte blanche do determine what it deems appropriate and misappropriate conduct.

The hypothetical situation involving the pizza establishment alluded to how 230(c) makes online service providers nearly bulletproof from liability against potentially unsubstantiated statements about a person or a business on their websites. A case that illustrates how difficult it is to hold an online service provider liable for comments made by its users is Kimsey v. Yelp. Kimsey was the business owner from Seattle mentioned earlier; Kimsey owned a locksmith business that had a profile page on the review site, Yelp. Kimsey objected to a particularly negative review posted by on the profile page by an anonymous person that was assumed to be a former customer.

The incredulous claims made by Kimsey aside, some of the 9th Circuit’s analysis specifically points out why it has been difficult for plaintiffs to hold online service providers liable under 230(c). The Court points out that Kimsey never alleged that Yelp created the review by the alleged customer. In other words, he had to show that Yelp was an “information content provider” as defined by 47 U.S.C. § 230(f); Yelp would have had to either create the all of the content or aided in the development of the content to fall under that definition. A big challenge for plaintiffs to meet that requirement would be to, somehow, get their hands on evidence that an online service provider created the content being posted to their site. One possibility that the Court shot down were questionnaires that service providers post to procure answers from the user as a way to be classified as a content provider. According to the Court’s precedent set in the Califano case, the fact that a service provider collects answers to questionnaires does not make it a content provider. With the legal resources available to online service providers, it seems very unlikely that you see them being held out as content providers anytime soon. However, the very court that protected Yelp from liability under 230(c), may have handed potential plaintiffs the means to work around this statutory shield.

Beckman v. Match.com – The Workaround?

The potential saving grace for merchants and people whose reputations have been sullied by comments made on review sites and comment sites was born from unfortunate circumstances. The background facts of Beckman v. Match.com involves a woman who was brutally assaulted by someone she met on the defendant’s dating website. Match.com had allegedly received multiple complaints about “Ridley”, the man that committed the assault on Beckman.

While the Nevada District Court dismissed Beckman’s claim due to Match.com’s immunity to liability under 203(c), on appeal, the United States Court of Appeals for the Ninth Circuit ruled that Match.com was not immune from liability due to their failure to warn Beckman about the dangers associated with Ridley. As support for their decision to remand Beckman’s case back to the district court, the 9th Circuit cited it’s ruling in Doe No. 14 v. Internet Brands; much like Beckman, the Court found that Internet Brands had a duty warn about two users who had received multiple complaints of running a rape scheme.

Let’s revisit the locksmith from Seattle and his complaint with Yelp. What if there were multiple complaints filed to Yelp about the fraudulent nature of comments made by the username of the person that made the complaint about the locksmith. If Kimsey had sued under a failure to warn claim against Yelp, would he have been successful? While the harm caused by alleged customers comments against the locksmith were not as grave as the harm caused by Ripley in the Beckman case, it is still harm. The comment caused the locksmith to lose business. While there was clearly a duty that Match.com had to Beckman, is it clear that Yelp has a duty to the businesses that are not clients of theirs? An argument could be made for a duty, especially when there is a profile of the business on their site. All questions of duty aside, the 9th Circuit’s ruling could potentially chill the free speech that 230(c) sought to protect.

The Constitutional Consequence of the 230(c) Workaround

It could be said that 230(c) was brought about because of legal challenges, like Reno v. ACLU, to the Communications Decency Act that chilled free speech on the Internet. In Reno, many litigants objected to provisions of the Communications Decency Act that made it a crime to transmit “obscene or indecent” materials. The Supreme Court agreed with the litigants by stating the provisions in question violated the first amendment right to freedom of speech.

The 9th Circuit’s ruling in the Beckman case could be viewed as a way to undo the intent of Reno and 230(c). Online service providers like review sites or blog sites could be forced to chill the rights of its users to speak freely due to a few unsubstantiated complaints about that particular user. These sites could go as far as having the users removed from service for fear of a potentially damaging lawsuit.

Final Thoughts

Some would say there is an irony to the Beckman ruling; it turns the tables those that are anonymously posting negative sentiments about people and merchants on review and blog sites. There are others that will look at this ruling as a backdoor way to censor unwanted commentary; given certain people in certain high offices in this country, there is legitimate merit to that fear. My hope is that Congress can get together and create legislation to limit the damage to free speech that could be done by the Beckman ruling, much like they did to fix the free speech inhibiting aspects of the Communications Decency Act with 230c. No one should be hurt by unsubstantiated accusations, whether you are a merchant or some person posting on a blog or review site.

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