Lomnitzer Law Firm Defeats Communications Decency Act Defense
Reputation management and public image are just two of the countless aspects of our lives that that have been impacted by the internet. The internet and social media not only allows for people to create their own personal brands but also invites others into their lives in a way that was not possible before the advent of the World Wide Web.
A critical aspect of a public persona, particularly for businesses, is third-party review websites. Consumer reviews are easy to post and easy to access. People love sharing their opinions, and they can be highly influential—a good thing if a review is genuine and good. But what about when a review, or a series of reviews, is false? Reviews that are posted on consumer review websites are often driven by ulterior motives. They sometimes mischaracterize a consumer’s experience; other times, they are written by people who have never even used the product or service they are reviewing. Yet these reviews, particularly those that are not obviously fake, can be just as influential as real reviews.
If a business receives false reviews that impact its reputation or bottom line, who is at fault?
According to the Communications Decency Act (“CDA”), 47 U.S.C. § 230, “[n]o 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.” The CDA also precludes liability under any state law or local law, so long as (1) the defendant in question is a “provider or user of an interactive computer service”; (2) the claim is based on “information provided by another information content provider”; and (3) the claim treats the defendant “as the publisher or speaker” of that information. Universal Commun. Sys. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007).
In other words, certain internet service providers may not be legally liable for information posted to their websites by third parties so long as they meet the three elements set forth above. This is true whether the provider is a search website, such as Google®, a review website, like Yelp®, or any other website which posts information that is generated by third parties.
Of course, while the CDA provides broad immunity in order to prevent chilling effects on free speech, that immunity is not without boundaries. An important example has recently been carved out in the District Court of Massachusetts. There, a group of six moving companies and brokers recently banded together to bring suit against the website www.mymovingreviews.com. The site and its owner have been alleged to be clandestinely affiliated with a certain moving company, but publishes reviews about various competitor moving companies. The plaintiffs’ claims included false advertising and unfair competition. The defendants moved to dismiss the case, relying on the CDA to provide immunity from the lawsuit.
The plaintiff moving companies, represented by The Lomnitzer Law Firm, did not allege that the website was responsible for the content of the reviews themselves. Rather, the plaintiffs’ claims were based on the method in which the reviews were displayed. The complaint alleged that the website manipulated the visibility of the reviews so that negative reviews of the plaintiff companies were prominently displayed, while positive reviews were hidden and that there is a misrepresentation in the website’s ratings system.
The Court considered the applicability of the CDA using the framework laid out in Lycos, Inc. and determined that the website is a provider of an interactive computer service. However, the defendants were unable to meet the remaining requirements specified in Lycos which would provide immunity under the statute. First, the plaintiffs’ claims were not based on information provided by third parties. The court noted that“[t]he plaintiffs’ claims do not arise from the content of the reviews, whether they be disparaging, laudatory, or neither, but instead, the defendants’ alleged ill-intentioned deletion of positive reviews of the plaintiffs’ moving companies and deletion of negative reviews of their own company, coupled with various representations” about the website’s neutrality and lack of bias. Second, the plaintiffs’ claims were not about the website’s publishing of the reviews, but about these representations of neutrality in regards to the publishing. Representations relating to third-party generated content are not immunized under the CDA. Levitt v. Yelp! Inc., 2011 U.S. Dist. LEXIS 124082 at 31 (N.D. Cal. 2011).
The Court ultimately determined that “[t]he manner in which the information is presented, or withheld, is the conduct at issue, as well as the allegedly misleading ratings which result from such alleged manipulations. Such conduct provides substantial basis to find that the defendants were developers of the alleged misinformation.” Further, any reviews that were written by the defendants personally—as was also averred in the complaint—would not be immune under the CDA. In such an instance, the information would be provided by the defendants themselves rather than third parties.
And so the Court denied the defendants’ motion to dismiss under this theory and the court has made clear that the CDA is not an endless shield. Even if a provider of an interactive computer service posts only information provided by third parties, the provider may be subject to liability if it posts the information in a certain way and/or makes misrepresentations about the information it posts.
Do you, personally, pay attention to reviews?
Consider this: a recent study by the American Bar Association found that people tend to look for lawyers on Yelp® more than they do on longtime heavyweight attorney-search websites like Martindale-Hubbell, Avvo, and Super Lawyers. Between that fact and the issues in this current litigation, if you weren’t thinking about them before, you may well want to start.
About the Authors
Lorri Lomnitzer focuses her practice on intellectual property, entertainment law, and commercial litigation. She has litigated a wide variety of intellectual property disputes, including cases involving claims to patent, trademark, and copyright matters. Ms. Lomnitzer handles both litigation and transactional matters, and represents a wide variety of clients with technology, entertainment and intellectual property related issues. She has negotiated and prepared publishing and recording artists’ agreements, with a focus on copyright and royalty issues. Ms. Lomnitzer previously worked for the Los Angeles district attorney’s office in the high tech crimes unit where she handled high technology and intellectual property cases such as unauthorized CD and DVD duplication, trademark violations, e-bay fraud, identity theft and high profile trade secret crimes. Ms. Lomnitzer can be reached at 1-800-853-9692 or Lorri@Lomnitzerlaw.com
Candice Lazar is an Associate at the Lomnitzer Law Firm, P.A. Mrs. Lazar is licensed in Florida on the State and Federal level. Ms. Lazar practices entertainment law, intellectual property law, and civil litigation. Prior to joining The Lomnitzer Law Firm, she practiced trademark law with a focus on anti-counterfeiting. Ms. Lazar earned a Bachelor of Arts degree summa cum laude from Michigan State University and a Master of Science in Management from Walsh College before graduating cum laude from the University of Miami School of Law. She had two articles published during law school. She served as Executive Editor of the International and Comparative Law Review and earned the CALI Excellence for the Future Award in her Wrongful Convictions course. Ms. Lazar can be reached at 1-800-853-9692 or Candice@Lomnitzerlaw.com